How is child support and alimony calculated in Texas?
Full Question:
Answer:
Texas is an equitable distribution state. Property division and support payments will be determined based on all the factors involved in each case. The parties may make an agreement between themselves for dividing assets, child custody, and any support payments, which may be incorporated in the divorce decree if the court finds it is fair and in the best interests of the parties involved. Without such an agremeent, it will be a matter of subjective determination for the court to decide property division, alimony, child custody, and child support, based on all the facts and circumstances in the individual case.
The court may order rotating child custody if the court finds that rotating custody will be in the best interest of the child. Joint custody provides that a child live an equal amount of time with each parent. This is not always best for the child, but joint or rotating custody is typically awarded in cases in which the child is older or more mature, the parents live close to each other, and the rotation will not affect the child’s schooling. The court may also take into consideration the child’s preferences.
Even with a 50/50 time split, payment of child support may still be ordered. This is because child support is based on the standard of living the child would have had if the divorce had not occurred. If one parent makes quite a bit more than the other, then typically that parent would end up paying support even in a 50/50 custody split, to maintain the child's standard of living when with the parent who earns less.
Child support payments in Texas are based on statutory guidelines for percentages of the non-custodial parent’s assets. Some courts will not allow the parties to waive child support requirement even if the parties are in agreement. Generally, the right to waive the support is construed to belong to the child and not to the parent with whom the child lives. Since the child is not competent to make this kind of decision, the court is very reluctant to allow child support to be waived. It will be a subjective matter of determination for the court based on all the facts and circumstances in each case. The overriding determining factor is the child’s best interest and the child support ordered in the decree will ultimately be a matter for the court to specify.
Please see the following TX statutes for applicability:
§ 7.001 FAM. FAM. General Rule of Property Division
In a decree of divorce or annulment, the court shall order a
division of the estate of the parties in a manner that the court deems just and
right, having due regard for the rights of each party and any children of
the marriage.
§ 7.002 FAM. Division and Disposition of Certain Property Under Special
Circumstances
(a) In addition to the division of the estate of the parties required
by Section 7.001, in a decree of divorce or annulment the court shall
order a division of the following real and personal property, wherever
situated, in a manner that the court deems just and right, having due
regard for the rights of each party and any children of the marriage:
(1) property that was acquired by either spouse while domiciled in
another state and that would have been community property if the spouse
who acquired the property had been domiciled in this state at the time of
the acquisition; or
(2) property that was acquired by either spouse in exchange for real or
personal property and that would have been community property if the
spouse who acquired the property so exchanged had been domiciled in this
state at the time of its acquisition.
(b) In a decree of divorce or annulment, the court shall award to a
spouse the following real and personal property, wherever situated, as the
separate property of the spouse:
(1) property that was acquired by the spouse while domiciled in another
state and that would have been the spouse's separate property if the
spouse had been domiciled in this state at the time of acquisition; or
(2) property that was acquired by the spouse in exchange for real or
personal property and that would have been the spouse's separate property
if the spouse had been domiciled in this state at the time of
acquisition.
(c) In a decree of divorce or annulment, the court shall confirm the
following as the separate property of a spouse if partitioned or
exchanged by written agreement of the spouses:
(1) income and earnings from the spouses' property, wages, salaries,
and other forms of compensation received on or after January 1 of the
year in which the suit for dissolution of marriage was filed; or
(2) income and earnings from the spouses' property, wages, salaries,
and other forms of compensation received in another year during which the
spouses were married for any part of the year.
§ 7.006 FAM. FAM. Agreement Incident to Divorce or
Annulment
(a) To promote amicable settlement of disputes in a suit for divorce or
annulment, the spouses may enter into a written agreement concerning the
division of the property and the liabilities of the spouses and
maintenance of either spouse. The agreement may be revised or repudiated
before rendition of the divorce or annulment unless the agreement is
binding under another rule of law.
(b) If the court finds that the terms of the written agreement in a
divorce or annulment are just and right, those terms are binding on the
court. If the court approves the agreement, the court may set forth the
agreement in full or incorporate the agreement by reference in the final
decree.
(c) If the court finds that the terms of the written agreement in a
divorce or annulment are not just and right, the court may request the
spouses to submit a revised agreement or may set the case for a contested
hearing.
§ 8.052 FAM. Factors in Determining Maintenance
A court that determines that a spouse is eligible to receive
maintenance under this chapter shall determine the nature, amount,
duration, and manner of periodic payments by considering all relevant
factors, including:
(1) the financial resources of the spouse seeking maintenance,
including the community and separate property and liabilities apportioned
to that spouse in the dissolution proceeding, and that spouse's ability
to meet the spouse's needs independently;
(2) the education and employment skills of the spouses, the time
necessary to acquire sufficient education or training to enable the
spouse seeking maintenance to find appropriate employment, the
availability of that education or training, and the feasibility of that
education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and
emotional condition of the spouse seeking maintenance;
(5) the ability of the spouse from whom maintenance is requested to
meet that spouse's personal needs and to provide periodic child support
payments, if applicable, while meeting the personal needs of the spouse
seeking maintenance;
(6) acts by either spouse resulting in excessive or abnormal
expenditures or destruction, concealment, or fraudulent disposition of
community property, joint tenancy, or other property held in common;
(7) the comparative financial resources of the spouses, including
medical, retirement, insurance, or other benefits, and the separate
property of each spouse;
(8) the contribution by one spouse to the education, training, or
increased earning power of the other spouse;
(9) the property brought to the marriage by either spouse;
(10) the contribution of a spouse as homemaker;
(11) marital misconduct of the spouse seeking maintenance; and
(12) the efforts of the spouse seeking maintenance to pursue available
employment counseling as provided by Chapter 304, Labor Code.
The following is a TX statute:
§ 7.006 FAM. FAM. Agreement Incident to Divorce or
Annulment
(a) To promote amicable settlement of disputes in a suit for divorce or
annulment, the spouses may enter into a written agreement concerning the
division of the property and the liabilities of the spouses and
maintenance of either spouse. The agreement may be revised or repudiated
before rendition of the divorce or annulment unless the agreement is
binding under another rule of law.
(b) If the court finds that the terms of the written agreement in a
divorce or annulment are just and right, those terms are binding on the
court. If the court approves the agreement, the court may set forth the
agreement in full or incorporate the agreement by reference in the final
decree.
(c) If the court finds that the terms of the written agreement in a
divorce or annulment are not just and right, the court may request the
spouses to submit a revised agreement or may set the case for a contested
hearing.
§ 7.006 FAM. FAM. Agreement Incident to Divorce or
Annulment
(a) To promote amicable settlement of disputes in a suit for divorce or
annulment, the spouses may enter into a written agreement concerning the
division of the property and the liabilities of the spouses and
maintenance of either spouse. The agreement may be revised or repudiated
before rendition of the divorce or annulment unless the agreement is
binding under another rule of law.
(b) If the court finds that the terms of the written agreement in a
divorce or annulment are just and right, those terms are binding on the
court. If the court approves the agreement, the court may set forth the
agreement in full or incorporate the agreement by reference in the final
decree.
(c) If the court finds that the terms of the written agreement in a
divorce or annulment are not just and right, the court may request the
spouses to submit a revised agreement or may set the case for a contested
hearing.
