It is not unusual for parents I meet with for consults to have questions regarding child support. Often, the parent paying thinks he is paying too much and the parent receiving feels they are not getting enough.
Recently, I had a consult with a potential client who had several concerns regarding the child support he was paying. He had such a multitude of issues that I felt his case would be helpful to others as both a warning and an education of the family law process.
The issues were as follows:
- I was never served; how can they take child support out of my paycheck?
- Are they allowed to take half my paycheck?
- Can I get a new trial?
- Can I lower my child support amount?
- My wife had an affair; do I have to pay child support on a child that is not mine?
- Can I terminate my parental rights?
- My wife will not let me see my child. Can I get better visitation?
- My wife is suing me for divorce; what do I do?
Service is Mandatory in Texas Child Support Cases
It is required under the Texas Family Code that a parent be notified when a child support case has been opened. This means they must be informed that the Petitioner has asked the court to do something that might affect the Respondent's legal rights. It is not enough for you the Petitioner to tell the Respondent about the lawsuit. They must follow the Texas Rules of Civil Procedure in giving legal notice.
One of the questions that I asked the father was if he been served with paperwork. He told me he had not received any service, but constables had been showing up and handing him all kinds of paperwork on different occasions.
His statement raised some read flags with me and I had him give me the documents he had received. After reviewing the paperwork, I could inform him that he had been served about six months prior to his meeting with me. I showed him that one of the documents he had received from a constable basically stated that:
- He was being sued by his wife for child support, custody, and decision-making regarding his children.
- The document also told him he needed to file an answer or his wife could default him (win the case).
- Another document he received informed him that his wife had defaulted him about two months later and he could expect his employer to start taking child support out of his pay check.
Once I showed him and explained to him what the paperwork said, he wanted to know if he could he get a new trial.
Motion for New Trial
I explained to the potential client that it is not uncommon for a case to be resolved by a default judgment. People make mistakes for one reason or another and miss their court date. One remedy for this situation is to file a “Motion for New Trial” and ask the court for another chance to have a hearing.
However, this motion for a new trial needs to be filed 30 days after the date the judge signed the order. Sometimes, the 30 days can be extended a little bit based on when he found out about the default judgment.
Unfortunately, in this case, he had notice four months ago, so we would not be able ask the court for a new trial.
Child Support Amount
One of this father’s big concerns was that the child support amount was too high. I asked him how much he was paying. He informed me that it was $215 a month. I let him know that this to would be something we would not be able to help him with because:
- The default judgment was so recent, courts do not like to revisit cases for at least a year unless there has been a substantial change in circumstance. Thus far from our conversation nothing he had told me would lead me to believe that there had been a substantial change in circumstance.
- Child support is set at the minimum amount of child support for most cases. From what I could tell, they had set child support at minimum wage child support. In Texas, it is expected that everyone should be able to get job making minimum wage working 40 hours a week.
Calculating child support in Texas is fairly straight forward. Once you know your net monthly income, a percentage of it will go toward child support. The percentage for one child before the court is 20%.
I let him know that from what I could tell, his child support amount was already set the minimum amount for Texas guidelines for child support and nothing he had told me so far would lead me to believe he had a good case for deviating from this amount.
Presumption of Paternity
One of the potential client’s concerns was that he was not the biological father of his child and so he wanted to know why he had to pay child support for his child.
I explained that under Texas Family Code Section 160.204, “A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage…”
Can I Terminate my Parental Rights?
He then asked about terminating his parental rights so that he did not have to pay child support. Generally, terminating parental rights for the sole purpose of not paying child support is not something a court will do.
However, the fact that the child was not his biologically could give us the inroad to do what he was asking. In order to find out, I asked some clarifying questions including:
Question: How old is your child?
Question: Did you sign the birth certificate?
Question: When did you find out that your child might not be yours?
Answer: I knew when I signed the birth certificate.
After getting some clarification regarding his not being the biological father of his child, I was able to let him know he did not have a good case. I explained that typically courts do not like to let parents out of being parents even when they are not the biological parent.
However, had he acted much sooner, we probably could have helped him. Typically, the deadline for doing so is prior to the child turning 4. This made him 11 years too late.
However, we still might have been able to help him if he only recently found out. If that had been the case, he would have two years from the date he found out to do something about it. In his case, this was not a good argument because he knew he was not the father when he signed the birth certificate 15 years ago.
My Wife is not Letting me see my Daughter
The consult then asked about getting better visitation regarding his daughter. We did not have a copy of the current order, so I could not advise regarding visitation. However, I was able to explain what he probably had was standard visitation and that this could be modified into an expanded order if he liked during the divorce.
At the very least, if his wife did not let him exercise his visitation, we could help him bring a motion to enforce the current order regarding visitation.
My Wife is Suing me for Divorce; What Should I do?
The consult then asked me about the divorce lawsuit the wife had brought against him. I reviewed the paperwork and let him know he was facing a default situation just like he had in the child support case.
I asked my support staff to call the court to see if she had defaulted him. He was lucky in that she had not. I then explained the most important thing he could do at this point was to file an answer and how he could do so.
This gentleman’s situation reminded me of a blog posting I had written: “6 Mistakes that can Destroy Your Texas Divorce Case.” In that article, the number 1 thing I had listed was “Taking No Action and not Seeking Legal Help.”
The man I met with had a lot of things we could have helped him with had he sought our help while they were happening. Unfortunately, he waited too long for most of those things. I think the moral of this story is to not wait until it’s too late to get legal advice.
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Other Articles you may be interested in:
- Husband Not the Father, what do I do in a Texas Divorce?
- I am not the biological father but I want to be – Paternity by Estoppel?
- Texas Child Support Appeals
- Child Support Modification in Texas
- Terminating Parental Rights in Texas on the Absent Parent
- Can I sue my spouse's mistress in Texas?
- My Spouse Has Accused Me of Adultery in my Texas Divorce and I Haven't
- When is, Cheating Considered Adultery in a Texas Divorce?
- Sex, Lies, Rock-and-roll, and Adultery in a Texas Divorce
- Can I Sue My Spouse for Mental Abuse in My Texas Divorce?
Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyer
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with a Spring, TX Divorce Lawyer right away to protect your rights.
Speak with divorce lawyer in Spring TX today who is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.