5 Factors Affecting Child Support

By | Child Support, Custody and Conservatorship, Divorce

Child support in Texas is generally calculated by applying a percentage to your net resources. For information on calculating child support, see my blog, Child Support Guidelines in Texas. The following five factors may further affect the calculation:

1. The child’s medical needs;
2. A party’s responsibility for other children as managing or possessory conservator;
3. Each party’s period of possession of or access to the child;
4. Travel costs for exercising possession of and access to the child;
5. Necessary child care expenses to stay employed.

These are merely factors to consider. Every case and court is different.

Child Support Guidelines in Texas

By | Child Support, Custody and Conservatorship, Divorce

The following table represents the guidelines for child support in Texas. These guidelines are presumed to be reasonable and in the best interest of the child; however, there are other case-specific factors that may reduce or enlarge one’s child support obligation.

An oversimplified example of calculating child support using this table is as follows:

If Ex-Husband, who earns $5,000 a month in monthly net resources has only one child with his Ex-Wife, his child support would be 20% of his net resources or $1,000 per month.

If Ex-Husband has more than one child; one with his Ex-Wife and one with his current wife with whom he lives, his child support would be 17.5% of his monthly net resources or $875 per month.

For information on what is considered “net resources,” please refer to my blog Net Resources and Child Support.

Using Social Media as Evidence in a Divorce – What you can and can’t do.

By | Custody and Conservatorship, Divorce, Just and Right, Marital Property Division, Trial Issues

Spouse is cheating, doing drugs, being a bad parent and Facebook can prove it right? All you need is for your lawyer to show the judge. Right?

There are 845 million monthly active users of Facebook and each profile has 40 potential entries of personal information. It goes without saying that a party’s activity on social media sites could be a lightning rod in a family law matter. Case in point: Anthony Weiner’s pictures on Twitter could have affected a would-be divorce brought by his pregnant wife.

Unlike financial records, where information reflecting detailed transaction activity over decades can be discovered via a subpoena, social media and networking sites are protected by federal law from forced disclosure.

Federal law prohibits electronic communication services from disclosing “contents of a communication while in electronic storage by that service” and prohibits remote computing services from disclosing “the contents of any communication which is carried or maintained on that service.” 18 USC § 2702.

Courts have interpreted the meaning of “electronic communication services” and “remote computing services” to include Facebook, Myspace, Twitter and Linkedln as well as email providers such as Gmail, Yahoo and Hotmail. Therefore, you can subpoena the records until you are blue in the face, but they are not required to produce anything more than basic information. Even if it were possible, it would be the most expensive route because many of these companies are out of state and a subpoena wouldn’t be considered until the lawsuit is domesticated.

Fear not, there may be another way.

A court in Connecticut recently and quite boldly ordered divorcing parties to exchange Facebook and dating site login and passwords. Although Texas doesn’t have any reported cases involving this kind of exchange, it is within the realm of possibility considering applicable discovery rules.

A party in a Texas lawsuit is entitled to discovery of non-privileged information that is relevant to the subject matter of the case. Even if the information would not be admissible at trial, it may be discovered if it appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. § 192.3(a). For more information on discovery, refer to my blog: Finding Hidden Assets in a Divorce.

In the divorce or custody context, this means information relating to fault in the marriage, parenting, child support and everything in between could lead to the discovery of admissible evidence. Content on Myspace or Facebook depicting you behaving like a single person is likely to lead to admissible evidence that you committed adultery. Match.com or eHarmony is a little more obvious. A statement regarding drug use is likely to lead to admissible evidence that you do not have a stable home environment for your children. Therefore, a strong argument can be made that content on social media sites are relevant and in fact valuable in proving your case.

“If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” Eric Schmidt, CEO of Google 2001-2011.

The best way to discover social media activity is to request it through discovery from the party who controls the account. As you can imagine, your spouse may object and do whatever is necessary to prevent the disclosure of the so-called “private” posts and communications. The privacy argument has been heavily debated but ultimately, the argument is weak in light of how slight the expectation of privacy is on these sites.

There are no bright line rules or tests in Texas that will guarantee you can force disclosure or prevent it. The argument to force disclosure is strengthened by the connection it has to subject matter in the case. It is weakened if there are other means to get the information or if it is out of scope, unduly burdensome or not likely to lead to the discovery of admissible evidence.

Facebook has made it somewhat easier to discover this information by allowing users to download a copy of all their facebook data online. Myspace will allow the production of data with the consent of the account holder. As it gets easier to produce the information, courts may be more inclined to order its production.

Unfortunately, it doesn’t appear that there is a solution to discovering deleted posts so it’s worth hitting the print button on posts you foresee being useful down the road. In situations where crucial information may have been deleted by the user, it may be possible to have a forensic exam of the party’s hard drive.

As always, the analysis will turn on the specific facts of each case and court. Check back for more information as case law in Texas develops.

Net Resources and Child Support in Texas – The Executive Pay Catch 22

By | Child Support, Custody and Conservatorship, Divorce

The highest paid executive earned more than $101 million in 2011 according to Forbes Magazine but his salary was only around $1 million. If this executive was ordered to pay child support in Texas, he would not be able to avoid child support on his entire income just because his salary is only $1 million.

The laws relating to calculating child support in Texas account for the many ways executives are compensated. Note – Texas has child support caps relating to net resources that would be an issue in this example but are not discussed herein. For more information, please refer to the blog titled Child Support Caps for the Wealthy.

Current child support is typically a fraction of the obligor’s net resources less certain deductions. Most people assume child support will be based upon their net monthly paycheck but this is an over generalized belief and in the case of the American executive, it misses the point.

The point is, child support is based on the obligor’s overall financial standing. The term “net resources” includes employment income but is not defined by it. Examples of more non-traditional net resources include trust distributions, stock options, self-employment income, rental income, commissions, bonuses, severance pay, retirement pay, social security pay and even unemployment and disability pay. Examples of items not considered net resources are return of capital or principal, accounts receivable, welfare benefits, foster-care payments and your spouse’s income.

In cases where the obligor has good years and bad, as in the case of the real estate mogul, the court will most likely average multiple years to determine his or her net resources. The averaging process is based upon what the obligor could pay not necessarily what he or she is able to pay.

Allowable deductions to net resources are federal income taxes, social security taxes, union dues, the child’s health insurance and cash medical support. Note, you cannot deduct 401k contributions from the net resources figure. Calculating the deductions can be fairly simple if your net resources are comprised of employment compensation only. The calculation is more complicated when net resources also include rental income, trust distributions or the other more non-traditional forms of resources.

In any case, child support is essentially based on your financial status as a whole. Being underemployed or paid in cash only also doesn’t help you avoid child support. For more information on calculating child support, check out my other blog entries on child support.