Dallas Divorce Law Blog by Michelle O'Neil

In a July 31, 2009 opinion by the Dallas Court of Appeals, it was confirmed that Federal law trumps Texas law when it comes to income tax issues.  In In re S.L.M., the mother brought child custody proceedings against father.  The district court appointed mother and father as joint managing conservators and awarded mother the right to claim the children as exemptions on her federal income tax return. On appeal, father contended the district court erred in awarding mother the right to claim the two children as tax exemptions.  In re S.L.M., ___ S.W.3d ___, No. 05-08-01277-CV, 2009 WL 2343264 (Tex. App. – Dallas July 31, 2009, no pet. h.).

The Dallas Court of Appeals held the district court erred in awarding mother the exemption rights and examined tax exemptions under the United States Internal Revenue Code.  In computing taxable income, a taxpayer is permitted to claim dependents as exemptions and the exemption is awarded to the custodial parent as the parent having custody of the child for the greater portion of the calendar year.  Id. at Sect. 152(e)(4).

When applying the pertinent provisions of the tax code to the facts, the court determined that father had greater periods of possession that mother and as such, should have the right to count the children as exemptions on his tax return.  As a Dallas divorce lawyer it is important to stay on top of not only family law developments but developments in other areas that impact family law.

Michelle May O’Neil, Dallas divorce lawyer, was quoted in the Dallas Morning News article More Texans Paying Child Support with Unemployment Checks As Economy Suffers.  The article by Emily Ramshaw was the lead article in the Thursday July 2, 2009 edition, starting on the front page, and with Ms. O’Neil’s picture appearing on page 14a.

A recent national survey of divorce lawyers notes an increase in the number of mothers paying child support.  According to the survey, 55% of attorneys said they have noticed a shift during the past five years in which more mothers are required to pay child support. 

This mimicks the trend that Dallas divorce lawyers are also seeing locally.  Many years ago, the Texas Family Code eliminated the gender bias from the language of the law, equalizing the rights of mothers and fathers.  Over the years since, the Texas Legislature has continued to support an increase in fathers rights overall.  We could have a spirited discussion on why this is… is it because many of the Legislators are fathers that have been involved in custody situations?  or is it because many of the Legislators are male?  Regardless, there has been a definite trend toward equalizing male and female roles related to children of divorce.  This, likewise, means that when a mother is not the primary parent, she will be required to pay child support.  In years past, when a mother did not have custody of the children, most often she was not made to pay support, presuming that the father made sufficient income to support the children financially without assistance from the mother.  But, some women more than or equal to their husbands (baby’s father) and therefore are required under the law to take equal or greater financial responsibility for the children.

Texas has standardized guidelines for the payment of child support based on the income of the paying parent… For example, 20% of the net income of the parent if there’s one child, 25% for two children, etc.  The formula becomes more complex if there are children from multiple relationships, where the parent paying the child support is given a credit for support paid to the children from the other relationship.

Regardless, there has been a trend recently in Dallas area divorces where mothers are being required to pay child support.  This isn’t necessarily because of some inherent unfairness in the legal system, but more because of a trend toward equalizing treatment of each parent regardless of gender.