The Subpoena Power

By | Child Support, Community Property, Custody and Conservatorship, Divorce, Just and Right, Marital Property Division, Separate Property, Trial Issues

There are two types of subpoenas that can command two types of actions. Trial subpoenas command appearance at a trial or hearing and discovery subpoenas command appearance to give testimony for the purpose of discovery of evidence. Either way, the subpoena can also ask for production of documents or tangible items for trial, a hearing or discovery.

The subpoena power can reach beyond the parties in a lawsuit. It can also compel non-parties or entities to comply. Although there are some limits, generally speaking, someone can be compelled to testify or produce documents in a case that they are not directly involved in. For example, Denise Richards could have been subpoenaed in Charlie Sheen’s criminal assault case for his alleged attack on Brooke Mueller. In his suit against Kim Kardashian, Chris Humphries (her 72 day husband) subpoenaed Kanye West (her boyfriend) to appear and give testimony at a deposition, purportedly to show she didn’t intend to marry Chris for legitimate reasons.

Oftentimes, the only way to obtain admissible evidence in a case and prepare for trial is to seek information from third parties using a subpoena. Bank records, computer files, corporate books and records, report cards, medical records, phone records and so forth are good examples. Note: Facebook and other social media sites are protected by federal law from the subpoena power.

Failing to comply with a subpoena could result in contempt charges. The statute allows for a court to assess fines or require the non-appearing party to be confined. Texas Rule of Civil Procedure 176.8.

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.

Back Child Support Laws in Texas

By | Child Support

The legal term for back child support in Texas is “retroactive child support.” There are two situations in which retroactive child support is available: in situations where the obligor (the person who pays the support) has never been ordered to pay support and in situations where they have. This blog will address the former situation.

One thing to keep in mind when addressing retroactive child support issues is that a court does not have to award it. It is purely discretionary and may depend upon the facts in the bigger picture of the case.

According to the statute, the court shall consider the net resources of the obligor during the relevant time period and whether:(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;(2) the obligor had knowledge of his paternity or probable paternity;(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor’s family; and (4) the obligor has provided actual support or other necessaries before the filing of the action.” Tex. Fam. Code 154.131.

Here are some key points about retroactive child support:

How much can be awarded? The answer depends upon the obligor’s net resources during the time period claimed. For more information on calculating child support and net resources, please refer to my blog Net Resources and Child Support.

How many months and years can be awarded? There is a presumption that retroactive child support for the prior four years is reasonable and in the best interest of the child. Support for additional years can be awarded with evidence that the obligor: “(1) knew or should have known that the obligor was the father of the child for whom support is sought; and (2) sought to avoid the establishment of a support obligation to the child.” Tex. Fam. Code 154.131(d).

What if the obligor has been paying, just not under a court order? According the statute, the court must consider evidence of support actually paid. For example, prior support would be paying for medical bills, helping with clothing, food and summer camps or money spent while the child was in possession of the obligor. The presence of some evidence showing prior support paid does not mean the obligor is entitled to a credit. It is up to the court to determine if he or she is entitled to an offset. For example, the Appellate Court in Amarillo upheld a judgment that did not give the obligor a credit for support paid because there were facts to support its finding that the money paid was to further an affair with the child’s mother, not to support the needs of the child.

How long can someone wait to file for retroactive support? Four years after the child’s 18th birthday is the deadline to file a petition seeking retroactive child support. That is a long time to wonder if you could be charged with retroactive support. Theoretically, an argument could be made that 18 years of retroactive support should be awarded if the facts fit the law. There are many judgments that have awarded 18 years of retroactive support and have been upheld on appeal.

Despite the uncertainty of how much retroactive child support, if any, can be awarded, the law is such that its advisable not to rely on its availability and not to trust that just because you have avoided child support thus far, that you can avoid it forever.

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.