Dallas Divorce Law Blog by Michelle O'Neil

In dividing assets in a divorce, a dollar is not always a dollar.  For example, in a typical divorce, a couple will have a house, retirement accounts, cash accounts, personal property.  In dividing a house, typically the equity in a  house for purposes of the division of assets in a divorce, is calculated by subtracting the mortgage balance from the fair market value, leaving an equity balance that is used in negotiating a fair division.  However, a dollar in equity is not necessarily equal to a dollar of cash.  Equity can never really be determined until a house sells.  Equity is invisible money, not available to buy groceries.  Equity can only be converted to cash through a sale of the property or a loan repaid with interest.  Further, since in Texas a homeowner/borrower cannot get access to the top 20% of home value, the cash is only available if the asset is sold.

Declining property values in this economy means that the party who receives the house in the division of assets needs to think about how to assign value to the equity.  The possibility of future sale , including realtor fees andseller costs, should be considered in reaching the equitable settlement.

Hat tip to Noel Cookman of The Mortgage Institute for this information.

Someone recently wrote to me and asked me to post about my views on “parenting time adjustments to child support”.  The writer wasn’t very clear on what he meant by this, so I will just comment generally.  Side note, it is nice to hear from someone out there that actually reads my posts.  Sometimes it feels like I’m talking to the air. 

As a general rule, child support and parenting time are separate issues.  In other words, just because parent A refuses to allow parent B to see the child does not give parent B the right to stop making child support payments.  And, vice versa.

Texas has standard guidelines that are presumed to apply.  That refers to the standard possession schedule and the standard child support guidelines.  When a situation deviates from the standards, the court has discretion as to how to apply the guidelines. But, the analysis in each case begins with the application of the standard possession schedule and the standard guidelines for child support.  So, in a case where one parent has primary possession and the other parent has the standard possession schedule, it is presumed that the parent with the standard possession schedule will pay child support according to the standard guidelines (i.e., 20% for one child, 25% for two, etc.)

Child support can, however, be adjusted up or down based on the amount of time a child spends with each parent.  On the one hand, if parent B fails to exercise his or her parenting time, leaving parent A with 100% of the responsiblities of caring for the child, the court may award additional amounts of child support to parent A.

On the other hand, if parent A and parent B have a split of time that is roughly equal, the court may take that equal split in account in whether to apply the standard child support guidelines.  I’ve seen courts handle a 50/50 parenting time split in two ways.  First, where the parents make roughly equal incomes, I’ve seen courts call it “even” on child support and make no specific award.  Then, I’ve also seen it where there is a disparity of earning capacity between the parents.  In such a situation, courts will usually calculate what each parent would owe the other in a traditional scenario and net out the difference. 

The bottom line is that the judges have discretion to enter orders taking into account the child’s best interest — as the judge views the best interest.  A judge will almost never be wrong in applying the guidelines, even if the parenting time differs from the standard schedule.  Whether a judge is simply taking the easy route by applying the guidelines, or whether some other factors enter into the decision, the standard guidelines are presumed to apply.  Likewise, a judge will almost never be wrong for deviating from the standard guidelines where the possession schedule also deviates from standard. 

Hope that answers the question………….

Dallas Divorce Lawyers note a similar trend to that in a recent Newsweek article.  Newsweek point to a trend nationally where divorcing couples are sharing equal time with their children as well as joint decision making.  The “standard” orders in a Dallas divorce involves parents making shared decisions regarding their children (such as what school they will attend or when to get braces) but the children live primarily with one parent and spend time with the other parent according to the Texas Standard Possession Schedule (current version 2008).  Increasingly, divorcing parents who are able to get along and co-parent their children are turning to a more equal possession schedule, such as a week-on/week-off type arrangement.  These arrangements work well as long as parents live close together, preferably in the same school district, and get along well enough to collaborate on homework, activities, and such things.  Parents who argue or cannot communicate do not do well with this type of arrangement.

For a FREE Divorce Guide offered to you by the Dallas divorce attorneys at The May Firm, click here.

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.

According to an article on KSAT website out of San Antonio, divorce lawyers nationwide are seeing a trend away from divorce in light of the recent economic woes.  We are seeing the same trends in Dallas divorces.  Usually bad economic times increase the stress on marriages, causing a rise in divorce rates.  But this time, it seems that couples are not splitting up as a result of the poor economy.  It isn’t that couples are rekindline their marriages, but more that they cannot afford to get divorced.  Housing values have falled, 401K values have fallen, and there is just not as much to divide.  Debt values may outweigh assets values, leaving nothing positive to gain from the divorce.  Spouses may not be able to get credit cards or personal loans to finance attorneys fees to obtain a divorce.  In fact, most credit card companies have reduced the credit limits on credit cards, leaving less available credit to borrow from.  I’ve even seen some spouses who cannot obtain new housing post-divorce, leaving them few options but to stay in an unhappy marriage just for a place to live.

Married internet browsers beware:  information obtained from internet browser history and spyware is being used as evidence in divorce cases.  One survey shows 79% of divorce attorneys reported use of internet browser history as evidence, while 44% show increase in spyware use.  Many people use the internet to act anonymously, but in reality using the internet is one of the more public things a person can do.

Trackers should also beware.  Some tracking software can be considered an invasion of privacy in violation of certain laws restricting wiretapping.  Keystroke analysis is one such type of tracking that can cause problems. 

In Dallas divorces, we are seeing an increase in invasion of email accounts to obtain evidence.  This can also be problematic and a violation of the law.

Apparently Alec Baldwin has a book coming out this week that talks about his experience with the divorce process.  I read an excerpt of the book online — the introduction and part of the first chapter.  What I read seemed to be his “rant” on perceived corruption in the judicial system in California.  He calls the judges inept and the lawyers lazy.  I plan to get the book and read the rest of it just to see what he has to say.  I don’t know the lawyers or the judge involved with his case. No doubt he had a bad experience with his divorce — we all remember the ultra-inappropriate voice mail left for his daughter. No doubt the judge in his case disapproved.  I am curious to see how much of the book shows a viewpoint skewed by his bitterness and anger as opposed to a bias in the system that is more far-reaching.  I was struck immediately by a story he tells in chapter 1 about controversies with movie producers where he concludes that the producers are more corrupt than the illegal drug business.  I question his credibility in criticizing the legal system when he also calls the movie producers corrput.  Sounds like he’s saying, anything I disagree with is therefore corrupt.  Overall, his book seems like an honest, maybe even raw,  account of an embittered divorce — not so dissimilar to the experiences of many people.  He also disucsses his opinions on “parental alienation”, which he calls a syndrome, although I’ve never known of it to be a diagnosable condition. He does seem to shed light on the inequities and prejudices that continue to persevere in our country over women versus men in raising children.  Starting a discussion of those inequities in a valuable result of his book, I just hope that the good that can come from a celebrity bringing a private situation in the public eye isn’t overshadowed by his bitterness and anger. 

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Continuing with the discussion last week about helping children cope with the reality of divorce, here are ten tips for divorcing parents, from the American Academy of Matrimonial Lawyers:

Ten Tips for Divorcing Parents

Divorce is never easy on kids, but there are many ways parents can help lessen the impact of their break-up on their children:

1. Never disparage your former spouse in front of your children. Because children know they are “part mom” and “part dad”, the criticism can batter the child’s self-esteem.
2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.
3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent’s hostility.
4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.
5. At every step during your divorce, remind yourself that your children’s interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.
6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.
7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.
8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.
9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child’s sense of abandonment and further erodes his or her stability.
10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent’s divorce.

If you need the advice of a Texas Board Certified Family Law Specialist, please contact us for an appointment.