Have you ever considered what would happen to you and your Child if your ex-spouse or Co-parent passed away and you no longer receive child support payments? These are real-life considerations that would impact your household budget in the bottom line for the financial state of your family in a brutal way. However, with all of the other aspects of our lives that are ongoing, we may not be able to stop and think seriously about this subject. However, I believe that is a mistake. Understanding what would happen with your family after the death of a Co-parent or ex-spouse is a significant consideration that you need to account for.
The duty to pay child support stems from the general concept in Texas that every parent must support their Child. This duty still applies before you become involved in a family law case. When a child is living in your household or even outside your home, you must perform certain functions for the Child, such as primary education, food, clothing, and shelter. Medical care and medical insurance become part of that equation once you become involved in the family law system. If you cannot provide health insurance or coverage to your Child, the state of Texas will do so, but you must reimburse the state for those expenditures.
Child support extends this general premise under which Texans operate in a family law setting. Typically, in a joint managing conservatorship, one parent is named the parent who has the sole right to determine the Child's primary residence. This means that one parent chooses where the Child lives full-time, and the other parent has visitation rights. Along with those visitation rights is a duty to pay child support. Child support is born from the non-primary parent to the primary parent because another child spends with both parents. While the non-primary parent typically has a fair amount of time with the child during the year, there is a difference. That difference is not only because one parent spends more time with the other children, but that parent also spends more money on them on average.
Child support will begin to make this a more equitable circumstance, allowing for the non-primary parent to start to even up those costs by paying support monthly. Alright, as a part of your divorce or child custody case, you would have likely gone over the circumstances of child support with your attorney. However, to make sure that you understand the implications of child support, I would like to go through this topic with you and discuss what it means from the standpoint of protecting yourself your Child and ensuring that there are no ongoing disputes with your Co-parent over a subject where it is easy to find yourself in disagreement with them.
Child support basics for Texas families
The concept of child support is not a complicated one. Your Co-parent pays money to you each month to help pay the costs associated with raising the Child. Child support is calculated based on the guidelines outlined in the Texas family code. Your Co parent's net monthly income will be calculated, and then a percentage will be applied against the set net monthly payment based on how many children you have before the court. Somewhere between 20 and 50% of your Co parent's net monthly income will pay child support each month.
That child support is typically not paid directly to you by them. Instead, a wage withholding order would have been set up. Your employer automatically deducts a certain amount of money from your co-parent's paycheck to pay child support at the beginning of the month. Those child support payments would flow to the office of the attorney general child support division. From there, the attorney general's office would act as a clearinghouse for the child support payments. The payments would then go to your bank account or a debit card of yours.
You had an arrangement where child support payments go through the state of Texas rather than directly to you serves a couple of good reasons. The first is that there is a record for everyone to keep track of the payments of child support made previously. There will not be a situation where one or both of you have questions about who has paid what and what your Co-parent owes, if anything. Instead, you can refer to the Ledger offered by the state of Texas. Based on this, there will be no question about what is owed in what has been paid. This keeps the both of you from keeping track of your own of these important figures.
Next, by having the payments flow through the attorney general's office, you know that your prices will be handled correctly. The alternative would be to receive direct payments from your Co-parent for these child support amounts. Unless you want to trust your Co-parent always to have the correct amount of money, I'm ready to go; then I would probably prefer that the state handle it if I was in your shoes. Additionally, it frequently ends up being where your Child must play middleman and deliver the Child Support payment to your co-parent. This can be an awkward position for your child to be in, and as a result and it's preferable for them not to have to get involved.
Child support can be modified if the need to do so arises. This is done through a formal child support modification case. To alter the Child, support the circumstances of you, your child, or your Co-parent would have needed to have changed somehow. In your case, let's walk through some common scenarios that may justify a child support modification.
Why may you be able to modify your child support?
As I'm sure you could imagine, the state of Texas is not precisely want to encourage parents to constantly try and change the amount of child support that they are receiving or paying. It's not that there aren't circumstances where doing so makes sense. However, to be in a position where the court constantly has to update child support on an ongoing basis will be difficult for the court to do and even more difficult for you and your Co-parent to keep track of. We have already talked about how wage withholding orders and other specifics would need to change over time in this type of scenario.
As a result, a specific legal standard must be met to modify child support. As with any modification case in Texas, the bar is a material and substantial change in circumstances. That material and significant change must have been seen by you, your Co-parent, or your Child. The most common reason families modify child support is due to a change in income. Typically, this involves your Co parents' income either increasing or decreasing.
For instance, if your Co-parent were to get a new job where they are paid more money, then a calculation would need to be done to determine if child support would change by greater than 20%. If that is true, a judge will modify child support to reflect this increased income in most cases. Otherwise, once a modification case is filed, you and your Co-parent would have to negotiate this specific modification based on the circumstances involved.
On the other hand, your child may have seen their circumstances change due to a physical or mental impairment that is suddenly relevant in their lives. Suppose your child has an impairment or disability that has developed since the last time you were in court to determine child support. In that case, you may be justified and ask for increased child support or at least medical permission to account for this newly developed condition. Were you to try to pursue an increase in child support based on a circumstance like this, you would be well served to provide documentation showing medical proof of a need as well as more specific information about the actual impairment or disability that your child is suffering; with? Confirmation of regular doctor visits, rehabilitation, behavioral health appointments, or things of this nature is what is sister court in deciding about the need for an increase in child support.
Ultimately modification cases are like divorce and child custody cases. They frequently come down to negotiation between you and your spouse on what is acceptable in terms of a given modification. Even if your change does not necessarily stand an excellent chance to be approved by a family court judge, you can continuously pursue the transformation through negotiation with your Co-parent. Your Co-parent could meet you in the middle where a family court judge likely would not be able to do so.
When it comes to the issue of child support, and specifically with modifications, it is essential to note that having an experienced hand to assist you is extremely important. The experienced attorneys with the law office of Brian Fagan stand ready to help you and your family in your child support needs, whatever they may be. We offer free of charge consultation six days a week in person, over the phone, and via video, where we can answer questions and talk to you about your circumstances. From there, you can decide whether or not you want to pursue a modification.
Child support obligations do not necessarily go away when a parent dies.
A parent's child support obligation ended for many years when they passed away. This was true even if the child in question was a minor. However, the legislature changed the Texas family code about 15 years ago to state that the court-ordered child support obligations survive the owing parents' death. In your circumstances, this means that your Co-parent would still owe child support even after they passed away. This may come as a shock to some people, but this is the case in Texas.
If your Co-parent were ordered to pay child support and then passed away before your child reaches the age of 18 or graduates from high school, then the amount that would have been done over many years would Become owed immediately after the death of your Co-parent. Your Co parent's estate would need to pay an amount based on the amount of child support owed. You can think of this as a debt that the estate must pay before distributing any property to persons named in their will or to heirs.
The parent's estate, their representative, and your attorney would likely need to agree on how to structure these payments of child support. This could become especially tricky if it becomes apparent through the probate process that your Co-parent lacks the resources in terms of assets to pay you this child support. In this case, a probate and family court would need the work together to determine The Child Support That would need to be paid in light of the lack of resources on the part of their state.
Determining how much child support is owed after the death of your Co-parent is the job of a family court. Future child support obligations can be discounted for present payment and can be offset by other benefits paid to your child upon the death of your Co-parent. In most cases, this means that if a life insurance policy is taken out before the passing of your Co-parent and your children are named as the beneficiaries. Any payout from that life insurance policy can offset The Child Support that is owed. This life insurance policy could help protect your Child's financial future if your Co-parent were to pass away. In many cases in life insurance policy whose face value is larger than the amount of child support owed would completely do away with the obligation to pay support in the future.
Where estate planning and family law collide
This is an exciting area of the law because it has family law elements and estate planning elements. Many people assume that matters related to child support are only relevant until your children reach the age of 18. This will be true. However, if you also planned not to do anything about planning for your end-of-life circumstances until you are much older, that would be a mistake. From the events we have been discussing today, we can already see that the end of life for some of us will not be when we are old and Gray. Instead, our end-of-life circumstances may be sooner than we think. While this may be unpleasant to think about, it is the reality that stares all of us in the face each day.
You need to consider the size of your estate, the assets that you own, other debts that need to be paid, and your life insurance policies when it comes to end of life and estate planning. Your health and the health of your children are also important factors. You can begin to minimize the risk of potential harm to your children by taking out a simple term life insurance policy where they are named as the beneficiaries or at least the secondary beneficiaries. Your Co-parent would be able to handle those benefits for your children, and you could set up a trust on their behalf if that were not to your liking.
On the other hand, if you are the parent receiving child support, you should begin to think about how you would pursue a claim on behalf of your children if your Co-parent passed away. Life insurance policies where you or your children are named beneficiaries do not have to go through probate. This means the money will be potentially able to go directly to you soon after your loved one passes away. However, it is wise to have a plan in place for these circumstances for you and your children.
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 an excellent way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.