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Mistakes to Avoid during Co-Parenting
Emotions are very high during and after a divorce or complex child custody proceeding, and parents should take care that these feelings do not corrupt future co-parenting efforts.
Although it may be difficult to do so, do not make negative comments about your ex-partner in front of the children. This language makes the children feel guilty and lowers their self-esteem. Furthermore, it may be a bad idea to allow children to choose between parents, whether formally or informally. Rather predictably, children have a hard time relating with the rejected parent, and the feeling is often mutual. Keep angry outbursts to a minimum, as they disrupt the co-parenting dynamic. Try venting to a friend, co-worker, or family member while outside the presence of the children.
Finally, never use the children to convey messages back and forth. They often get the idea that there is unresolved conflict that may never be resolved, which gives the children a poor perspective about conflicts that arise in their future relationships.
Are Texas Child Support Calculation Methods Outdated?
Twenty years ago, the Dallas Cowboys won their most recent Super Bowl against their archrivals from Pittsburgh. Cornerback Larry Brown intercepted two second-half passes from Neil O'Donnell, which the Cowboys turned into two touchdowns, and Red "First Dahwwnn" Cashion was the referee. Now, the game and its participants are largely relegated to NFL Films retrospectives and documentaries.
Twenty years ago, or 1995 to be exact, also saw significant changes to the Texas Family Code. But instead of perusing through cable TV channels ad nauseam, one need only walk into a Texas family court to experience these changes firsthand. Because, at a time when some other states are updating their child support laws, lawmakers in the Lone Star State show no inkling to do so, recent technical changes notwithstanding.
Guideline Support
Constructive Fraud: Where Did the Money Go?
Constructive fraud is quite common in high net worth divorce cases. Many times, these matters involve long-term marriages which slowly deteriorated over a period of several years, giving the spouses ample opportunity to surreptitiously redirect community funds. There is also a compounding factor; for example, Wife may think little of giving children from a prior marriage a few hundred dollars a month without Husband's knowledge, but over the years, the community estate may lose tens of thousands of dollars.
In decades past, a separate tort lawsuit was about the only option for recovery of these funds. These cases are difficult to file, due to statute of limitations issues, and difficult to win, because of different evidentiary requirements. Moreover, even if they have substantial incomes, many Texans are essentially judgement proof. But the law recently changed, and fraud victims now have a remedy within the divorce procedure itself.
Property Division: When Is Fair, Fair?
Texas law requires that the property division in a high-asset divorce be a "just and right" division of the estate. Generally, such a division is made along an even or fairly even basis. But that is certainly not always the case, and both parties should be prepared to present a compelling case that protects their individual legal and financial interests, both in the short and long terms.
Property division is further complicated by Texas' rather narrow spousal maintenance law. In many other jurisdictions, long-term alimony that is designed to balance the standard of living between the two spouses is at least an option. But that is not the case in Texas, unless the payee spouse has a permanent disability or some other impairment, is the custodian of a minor disabled child, or has been the victim of family violence.
What to Divide
Mediation or Collaborative Law?
Many litigants and practitioners consider these forms of alternative dispute resolution to be similar. There are some commonalities, not the least of which is that they are both negotiation-based, as opposed to litigation-based, methods for dispute resolution. But comparing this alternative to complex property litigation with mediation is a little like comparing this article to William Shakespeare's literary epic Hamlet: while there are some similarities, the comparison is by no means apples to apples.
Functional Differences
Collaborative law is a comprehensive litigation alternative that includes a discovery component. During this process, the parties freely exchange relevant documents, and any disputes are worked out between the parties. In a similar vein, the spouses themselves are typically responsible for gathering financial and other documents, so they feel invested in the process. If there is need for an expert, such as an accountant, the parties divide the cost.
Child Custody Modification in Texas
Even though a considerable amount of time and effort are poured into complex custody orders, they are not meant to last forever. In fact, as a rule of thumb, most such orders should be modified at least one every three or four years, to keeps pace with a family's changing needs.
Frequent modification is important, because "side agreements" are always unenforceable in family court, even if they are in writing. Many parents come to rely on these understandings, such as a different visitation schedule or pickup time. Then, when the other parent suddenly decides to go back to the way it was, they are left without recourse.
Basis for Modification
The movant (party seeking change) has the burden of proof to show need for the change by a preponderance of the evidence, meaning more likely than not. There are three grounds in Section 156.101, and all three have gray areas.
Paternity Laws in Texas
A Harris County judge ordered the father of Beyoncé Knowles to pay over $120,000 in past-due child support and attorneys' fees, after a paternity test showed that he sired an out-of-wedlock child in 2010.
According to a ruling by state District Judge David D. Farr, Mr. Knowles knew of the pregnancy several years ago and gave $250,000 in "hush money" to the mother in exchange for her discretion. "Mr. Knowles has zero interest, and in this court's consideration on the evidence, zero capability of being a positive role model in the child's life," the judge added. The award represents $1,500 per month in past-due child support and $50,000 towards the mother's attorneys' fees; Judge Farr awarded full custody of the child to the mother.
Paternity
Either a father or a mother can bring a paternity suit in Texas, and both fathers and mothers have an interest in doing so. A paternity action is the only way to establish financial responsibility on behalf of the parent, and also the only way to have a legal relationship with the child.
Divorce over Fifty: Financial Ramifications of Gray Divorce
Unmarried women over 50 are nearly five times more likely to live in poverty as married women in that age group, according to a recent divorce study.
Researchers from Bowling Green University also found a number of other "wide ranging financial consequences" to divorce in this age group. There are several reasons for this reality. First, according to the study, unmarried women receive significantly lower Social Security payments than married ones, mostly because when the system was designed, later-in-life divorce was essentially unheard of. Secondly, women who divorce earlier in life have more time to recoup lost wealth through employment and investment income.
Curiously, the age/income disparity was not present among men of a similar age.
Divorce Over 50
Marriage dissolution in this age group has doubled over the past two decades, even as the overall divorce rate has declined. Marriage dissolution in this age group creates a much different set of issues. Among younger couples, child custody and child support loom large; oftentimes, the only property to distribute is a rather small retirement nest egg and property that has little or no equity.
The Science and Art of Spousal Support Determination
The amount of duration of spousal support payments in a high asset divorce is a matter of both science and art because the relevant provisions in the Texas Family Code contain both a mechanical formula based on the length of the marriage and a guide for the evaluation of case-specific financial and familial data.
This combination is a response to a wave of alimony reform that is still going on in many jurisdictions. On the one side, obligor ex-spouses, who are nearly all men, want spousal support to be determined mechanically and sharply limited; obligee ex-spouses, the majority of which are women, insist that flexibility is necessary to bring about a just and right division of the marital estate.
Formula
The statute caps the duration of payments at five years (if the marriage lasted 20 years or less), seven years (20 to 30 year marriage), or 10 years (marriage of longer than 30 years). The duration of payments must be the "shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse's minimum reasonable needs." Some obligee spouses may elect a lump-sum amount as opposed to periodic payments. In these circumstances, the amount due is pre-calculated and a discount is applied to account for inflation.
Common Issues of Retirement Accounts in Divorce Division
In many high net worth divorces, assets have an emotional value that is equal to, or even greater than, the monetary value. For example, a house is not just a residence; it is the place where the children grew up. The same principle applies to many personal property items, like grandfather clocks and sets of dishes.
Retirement accounts often fall into this category as well. In addition to their significant dollar value (a 410k, IRA, or other long-term savings account is often the largest asset in a divorce), the account represents years or even decades of financial sacrifice and the promise of long-term security. So, it is little wonder that there are many issues stemming from retirement accounts in a high-asset divorce.
Pre-Division
As a brief primer, most retirement accounts are divided 50-50 between the spouses, based on the length of the marriage and the amount of money accumulated during that relationship, even if the non-owner spouse made no financial contributions.
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