Fran Brochstein - Mediator & Attorney in Houston Texas
Wednesday, January 3, 2018
Article for 2018 on family law from Texas Lawyer Magazine
Now is the time for family lawyers and their clients to begin preparing for several revisions to the Texas Family Code that are set to take effect in 2018. The biggest, most-scrutinized change involves how courts will handle child support, which is almost always a big point of contention.
In nearly every family law case, the noncustodial parent, or “obligor,” feels like they are paying too much child support, while the custodial parent, or “obligee,” believes they are not receiving a sufficient amount to raise their child.
In Texas, outside of an agreement otherwise, Chapter 154 of the Texas Family Code (TFC) governs the amount of child support that the nonprimary must pay the custodial parent each month.
To determine the monthly payment, barring any special needs or other extenuating circumstances involving the child, the code requires that the court first calculate the noncustodial parent’s monthly net resources (monthly income after taxes).
Based on that amount and number of children, a certain percentage is deducted from the obligor’s monthly net resources and paid to the custodial parent. The percentage varies depending on the number of children, with a deduction ceiling of 40 percent for all cases involving five or more children.
The code also requires the court to order the noncustodial parent to provide medical coverage for the child at a reasonable cost (TFC Section 154.181). The cost of the child’s health insurance premium is deducted from the obligor’s monthly net income to determine the monthly net resources discussed above.
Significant 2018 Changes
Effective Sept. 1, 2018, the TFC will require courts to begin ordering obligors to also cover their child’s dental insurance at a reasonable cost in addition to health insurance. The dental premium cost will be deducted from the obligor’s monthly net resources for child support calculation purposes in the exact same manner as health insurance premium costs.
The biggest change taking effect on the same date is the court’s ability to modify child support when the parents reach an agreement on a payment amount that does not follow TFC guidelines.
Currently, TFC Section 154.401 holds that no matter if an agreement has been reached on an amount that deviates from the guidelines, the court can modify a child support order under three scenarios:
• The circumstances of the child or a person affected by the order have materially and substantially changed since the original order.
• The parties have reached a mediated or collaborative law settlement agreement.
• Within three years of the original order being rendered or last modified, the monthly amount of child support under the order differs either 20 percent or $100 from the amount that would be awarded in accordance with the TFC child support guidelines.
Once the new rules take effect next September, if divorcing parties agree to an order under which the amount of child support differs from what would have been awarded in accordance with TFC guidelines, then the court may modify the order only if the circumstances of the child or person affected by the order have materially and substantially changed since the date the order was rendered.
Plain and simple, this change will affect family law cases and child support payments statewide. By restricting the ability of courts to modify child support to a material and substantial change only, custodial parents who agree to deviate from TFC guidelines, absent a proven material and substantial change to current circumstances, will not have the luxury of simply waiting three years and hoping for an increase in the obligor’s monthly net resources.
Since it is very common for an individual’s employment experience to increase over a three-year span and, in turn, create a spike in income, this change precludes the custodial parent from simply presenting those facts to modify support.
Custodial parents who utilize the services of the attorney general in a Title IV-D family case are not restricted by the above change to modify support at any time, absent a showing of material and substantial change, if the order does not provide health care coverage or dental care coverage.
Considering that calculating dental care coverage is not required until next September, there likely will be a massive increase in child support modifications in Title IV-D cases once the new rules are implemented.
These changes not only will affect potential settlements between parents or conservators, but also the strategies and practices of every family law attorney practicing in the Lone Star State. Texas lawyers will soon have to advise their clients of the possible effects of deviating from TFC guidelines and the significant obstacles to modifying child support in the future.
Another consideration involves the possibility of previously amicable divorcing parties becoming less so due to them being forced to adhere to the new guidelines, which could create an increase in docket congestion and the amount of tax dollars spent by each county.
The final impact of these new rules will not be truly realized until after they’re implemented, but it is crucial for all family lawyers to know the details prior to Sept. 1, 2018.
This article was written by - Family law attorney Kris Balekian Hayes is the founder and president of Dallas-based Balekian Hayes. She has represented clients in Texas, Georgia and Oklahoma in all areas of family law, including contested divorces, child possession and child support disputes, and mediation proceedings. She can be reached at firstname.lastname@example.org.