How your family law circumstances may be impacted by the passage of Senate Bill 870

With the beginning of September comes the implementation of various new laws in the state of Texas. Some of those updated or changed laws in Texas are based on the passage of Senate Bill 870. This bill seeks to make changes to the Texas Family Code and several areas having to do with child support. With child support always being a relatively hot-button topic we at the Law Office of Bryan Fagan wanted to take this opportunity to help take this bill and relate it to a circumstance that you or your family may be going through currently. Ultimately, this is where the law matters to you and me.

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Put yourself in this hypothetical situation. You are a parent who is the primary conservator of your son. This means that you have the responsibility of caring for your son daily and making decisions on his behalf regarding his education and medical issues. Being the primary conservator also carries with it the right to be able to receive child support on behalf of your child. Your ex-husband was ordered in the divorce to pay you child support of $1000 each month on the first. This is a standard situation for many families to find themselves in and it’s not necessarily anything out of the ordinary.

Unfortunately, your ex-husband in this situation has stopped paying child support. He was diligent for a couple of years after your divorce but in the past five months, he has not made one payment to you in child support. Now the two of you do not have a great relationship and you have no idea why he stopped paying child support. It could be any number of reasons why he has stopped paying child support, but you wouldn’t know because he does not return your phone calls or text messages. Both of you have smartly decided to not put your son in the middle of this dispute and so you go on wondering about why he has not paid you child support in some time.

Eventually, the situation progresses to the point where it has been almost a year and he has not paid your child support one time. A few missed child support payments did not put your budget into that much trouble but nearly twelve straight missed child support payments have put you in a situation where you have not been able to pay certain bills and you risk running behind in rent soon. As a result, you believe that you have no choice but to try to file an enforcement lawsuit against your ex-husband. You were going to ask the court to award you a judgment of all the past due child support as well as to have your ex-husband pay your attorney’s fees for having to hire a lawyer and file this enforcement case.

In a child support enforcement case, there are stiff penalties for having violated a court order. Some of those penalties include jail time and fines from the court for each violation of the child support order. These are strong deterrents against parents not paying child support. The idea that you can serve time in jail because of not paying child support surprises many parents they may even Intimidate a parent with bad intentions to get back on the right path and pay their child support.

Senate Bill 870 six builds upon the already tough penalties against failing to pay child support by allowing a family court judge to issue an order that requires an unemployed or underemployed parent who owes child support to be enrolled in and participate fully in a program that provides employment assistance, skills training or job placement services. This is an all-too-common situation where parents like you find themselves wondering if child support is going to be paid at the beginning of each month. Many people do not realize the importance that their child support payment has on their son or daughter as well as the household budget of the managing conservator parent.

One of the ways that parents who pay child support will try to get away with avoiding child support altogether or even paying a reduced amount is to purposefully un-employ or under-employ themselves. This may seem like a far-fetched idea, to purposely make less money than you could, but you may be surprised to learn that there are parents out there who will go to these lengths to pay a reduced amount of child support. Some of these folks even believe that because they are unemployed, they have no obligation to pay child support.

That assumption is simply not true. In general, the Texas child support guidelines provide that a percentage of a parent’s net monthly income will be paid each month in child support. That percentage begins at 20 and goes up to nearly 50% of a parent’s net monthly income. The factor that determines the specific percentage of money paid in child support is the number of children you have before the court. For instance, if you have one child before the court then the guidelines say 20% of the other parent’s income will be paid in child support. That percentage increases by 5% going up to a number approaching 50%.

The other part of this discussion is that your ex-husband’s net monthly income was determined in your divorce which becomes the number that the percentage is multiplied against to determine that $1000 child support total that we discussed a moment ago. It does not take a mathematical genius to figure out that if you reduce the net monthly income that you earn you could pay less in child support. This may be true when it comes to child support, but it is a bad move to make overall. 

As a result, what we see happen is that parents will go to great lengths to either under-employ themselves or not work at all based on their assumption that the child support court will leave that subject alone because they have no income. What happens is that a court will impose minimum wage earnings on you even if you do not have a job. Meaning, that a court will take the federal minimum wage and multiply that against 40 hours per week. From that, a monthly income will be extrapolated and reductions will be taken to determine your net monthly income. As you can see, even if you do not work at all it isn’t as if this is an excuse to not pay child support.

The other issue that this new law attempts to address is how some parents will try to underemploy themselves to pay a reduced amount of child support. Let’s suppose that your ex-husband had a job where he could earn $100,000 per year. However, eventually, he became so frustrated at the idea of having to pay child support that he purposely took a job with a different company which pays him half as much money per year. This would not be a great decision for him to make given that his income is going to be reduced by 50%bbut some people go to great lengths to avoid paying child support. If you can provide evidence to a court that this is what your ex-husband has done then the court can order him to pay you any back child support owed as well as order him to attend vocational, career, or job training courses after the hearing.

Adjusting the Child Support application for a parent behind bars

One of the most stressful times for a family is when a parent who pays child support is ordered to serve a sentence in jail or prison. Not only is there an emotional uncertainty at this time for the child and parent but there are also financial consequences that must be dealt with, as well. When a parent is no longer able to work then it is very unlikely that that parent will have enough savings or the financial ability to continue to pay child support. While it would be great if every parent who owed child support would have a savings account set aside just for rainy days that is unlikely to be the case. As a result, if you are a parent who faces jail time then this has typically put you in a bad position with the state of Texas when it comes to those child support obligations.

What you could have done in the past, and what you may want to continue to do now is to reach out to your child’s other parent to let him or her know about the jail time that you must serve. This will allow him or her to make plans not only in their family budget to be able to ensure that ends can be met but also regarding the possible filing of an enforcement case. You may be surprised to learn just how reasonable your child’s other parent maybe if you simply communicate with him or her about your circumstances and your upcoming inability to pay child support. You may be able to work out an agreement with him or her before your jail or prison sentence begins. This can help your child to make sure that their needs are met and avoid a situation where your child’s other parent files an enforcement case against you.

There are some exceptions to this new law which went into effect last week. This section does not apply if the judge determines that the parent is behind bars due to their failing to comply with a child support order. This comes up quite a bit in child support, child custody, and even divorce cases. Imagine a situation where your judge ordered your ex-husband to spend 3 months in jail because of not paying child support. This would very clearly be one of those situations where a judge would not then come back and modify or adjust the amount of support that is needed throughout that three-month sentence. 

Another instance where child support will not be adjusted in connection with serving a period in jail is if you or your child’s other parent are doing so as a result of being found guilty of an offense constituting an act of family violence committed against the other parent or your child. Acts of family violence typically include spousal abuse, sexual abuse, and other offenses like this.

What should you do if you find yourself in a position where your child support orders do not match up with your current circumstances? Regardless of whether the provisions contained in the various new child support laws impact you and your family you need to be able to figure out what you need to do if something has changed in your life or that of your child and therefore whether a modification is needed. For the remainder of today’s blog post, we will walk through what it means to modify a child support order and the steps to that process.

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There are two criteria to modify a family court order in Texas that you need to be aware of. The first requirement is that you need to have experienced a material and substantial change in circumstances since the last order was issued. That material and substantial change must have occurred in your life, your child’s, or your child’s other parent’s. From there, the requested modification needs to also be in the best interest of your child. Meaning that even if a material and substantial change has been noted the requested material change cannot be approved unless it is also in the best interest of your children.

The big question here is whether you have a material and substantial change in the opinion of a court. Many parents in your position will wonder if their circumstances rise to that level. It would be unfortunate for you to go through the time and costs necessary in filing a modification case only to determine that the facts of your case are insufficient to be successful. You would also need to fill out an affidavit that will be turned in with your petition to modify. This allows the judge to see the grounds on which you are basing your modification so that a judge can decide whether to allow your case to proceed to a hearing.

Meeting with an experienced attorney with the Law Office of Bryan Fagan to sort through the circumstances of your case to get a better understanding of them is a good idea. You can be sure that an attorney from our office will give you perspective and information that is based on our years and years of family law experience. We put the interests of our clients first and we’ll be upfront with you in the consultation about whether we think that your modification case can be successful.

Additionally, your case would likely proceed to mediation before needing to go before a judge and a hearing. This way you and your child’s other parent could determine whether there is a possibility that you all could successfully settle your case before a judge needs to intervene. If there is any middle ground to be found on the issue that you are bringing before the court, then you can seek to discuss with your child’s other parent what that middle ground may be and then work to find a resolution that can help you avoid going to court. Since much of the time in child support cases, you are trying to either increase or decrease child support there is usually a middle ground to be found on the subject.

In any event, whether you are interested in filing an enforcement case on child support or may need a modification on the support you are paid or do pay, you need to be aware of the newly updated laws on child support that have gone into effect this month. Rest assured, the attorneys with the Law Office of Bryan Fagan are up to date on these changes and we can give you information in a free-of-charge consultation that will allow you to make better decisions for yourself now and in the future. We thank you for joining us today here on our blog and we hope that you will consider joining us again tomorrow as we continue to share interesting and timely blog posts on Texas family law

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody lawsuit.

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