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Family Law FAQs

“If at first you don’t succeed, try, try again. Then quit. No use being a damn fool about it.” –W.C. Fields

Q: Can dads get custody?

A: Absolutely.

While it’s tougher for dads to win custody, it is possible. We’ve represented many dads with great success. What’s critical is that you work with a lawyer who has extensive daddy custody experience. It’s been our experience that dads really need to pick their battles. Custody fights are very expensive and time consuming. You want to be sure you have a high probability of success before you fire the first shot. We can help you assess your chances.

Q: When should I fight for custody?

A: When there is a significant difference in the quality of the parents, and the better parent has a more than 50% chance for success, a custody battle is likely the smartest option. When you are the better parent, simply going along to get along—and giving up custody to buy peace—usually doesn’t work to anybody’s satisfaction.

Here’s how the scenario often plays out: You give up what probably would have turned out to be a successful opportunity, your kids suffer, you realize your mistake, and a year or two later you spend twice as much money (with a lower likelihood of success) trying to correct the situation.

Q: Do moms have an “edge” in custody battles?

A: Yes. All things being equal...things are not equal.

Even though the Texas Family Code states that the choice of parent must be made without regard for gender, remember—people are people. Our attorneys have spoken with many jurors, and a very high percentage of them still feel that “babies should be with mama.”

That said, there are a lot of other factors that need to be considered to determine if indeed “things are equal.” We’ve won custody for many dads who didn’t realize they had significant advantages over the mother for a custody battle. Their children are with them now, and are much better for it.

Call and then meet with a lawyer. Lay out some of the facts. You may have a much better chance of gaining custody than you think.

Q: Can a dad avoid child support by going after custody?

A: Yes. You can also avoid income taxes by stepping in front of a bus, but we don’t recommend it.

The cost of raising a child in your household is usually far more than the child support you’ll be ordered to pay if you don’t have custody. Children ‘eat’ money. Unless you truly want to make all the sacrifices it takes to have that child in your home, pay the support.

If money is your main criteria, paying child support is the cheaper way to go by far.

Q: My ex-spouse wants me to send her extra money (in addition to my child support) and I’m fine with that. Any reason I shouldn’t?

A: If you want to, then do it. However, pay it through the same Child Support Office where your regular child support payments are made. The address and phone number are in your decree.

There are many reasons for doing so:

  • If, for whatever reason, you are off work for a few months, those extra payments can create a cushion that will keep you from being thrown in jail and being hit with attorney’s fees;
  • If you are several months ahead on support, your ex-spouse may not want to take you back to court on nit picky issues (because he or she knows that you can stop paying until support catches up);
  • For the same reason, your ex-spouse is less likely to take you back to court for an increase; and
  • If for whatever reason you’re required to go to court with your ex-spouse, you will have instant credibility when your lawyer lets the judge know right up front that you are a member of a very select group of parents---those who are ahead on child support.
  • It’s great that you want to do something nice for your children. Do it, but do it wisely.

Q: What is a “Contempt Motion” or “Motion for Enforcement”?

A: When someone subject to a written court order (i.e. a decree, temporary orders, etc.) fails to obey it, they can be fined, put in jail, ordered to pay monetary sanctions or subject to other court punishments.

The opposing party must file a Motion for Enforcement with the court and serve it on the offending party. The party served must have at least 10 days notice (from the date served) before the hearing is held.

Q: What is separate property?

A: In a marriage in Texas, “separate” property is defined as the following:

  • Property you owned prior to being married;
  • Gifts given to you during the marriage; and
  • Any recovery for personal injury damages (pain and suffering, disfigurement, physical impairment) except lost wages.

Q: What is community property?

A: Any property acquired by either spouse during the marriage (except as listed above).

Q: How is child support calculated?

A:The Texas Family Code contains presumptive guidelines for the computation of child support. The guidelines are specifically designed to apply to situations in which the obligor's monthly net resources are $7,500.00 or less. In such cases, the court presumptively applies the following schedule:

1 child
2 children
3 children
4 children
5 children
6 or more children
20% of Obligor's Net Resources
25% of Obligor's Net Resources
30% of Obligor's Net Resources
35% of Obligor's Net Resources
40% of Obligor's Net Resources
Not less than 40%

If the obligor has children from another relationship(s), the percentages listed above may be reduced.

If the obligor's net resources exceed $7,500.00 per month, the Court shall presumptively apply the above percentages to the first $7,500.00 of net resources. Without further reference to the percentage, the court may order additional amounts of child support. The court may not order the obligor to pay more child support than the presumptive amount (as calculated by multiplying the above applicable percentage times $7,500.00) or an amount equal to 100% of the proven needs of the child, whichever is greater.

Net resources is defined very broadly, and can include a parent's earning potential versus their actual income.

In addition to monthly child support payments, the payor is required to maintain the children on the payor's employment health insurance policy. If insurance is not available through the payor's employment, but is available through the payee's employment, the payor will be ordered to pay the premium costs. If insurance is not available through either party’s employment, the payor will be ordered to provide insurance coverage to the extent available and affordable. Additionally, the Court usually makes orders regarding the payment of deductibles and other uninsured expenses. All Orders dealing with child support must now be accompanied by an Order of Withholding. Medical Support Orders are now commonplace. The Withholding order, after presented to the payor's employer, has the Court-ordered child support deducted directly from the payor's paychecks.

The court can also order the payor to secure life insurance to cover the amount of child support that will become due until the child support obligation would terminate, which can be up to 18+ years.

Q: Can I get a judge to award higher (or lower) than standard child support?

A: Yes, sometimes. Texas allows the primary parent to get above guideline child support where the “proven needs of the child or children” exceed the amount presumed by the Texas Family Code.

Note that the Family Code says “needs” not “wants”. You must show that the child or children have basic needs that exceed what the current guidelines will allow. Examples of “needs” are medical bills, schooling, unusual travel, etc.

Q: Can I file for divorce without a lawyer?

A: Some people do, and are successful. Should you try it, make sure you’re looking at a very, very simple divorce. If there is no real estate to divide, no children from the marriage, very little personal property, and it’s been a short-term marriage, then you very well may be able to handle the matter yourself.

But first, make sure that you’re a “Do-It-Yourself” type who frequently handles complicated matters on their own. An astute person who can access the necessary documents to be filed can probably handle a simple (uncontested) divorce on their own.

But remember, by doing so, you’re putting yourself at risk. It is much safer to hire a good attorney and let him do the work for you.

Q: What if I don’t care about the cost of the attorney’s fees because ‘it’s the principle that matters’?

A: In that case, by all means call us right now!

Seriously though, in the almost 30 years our firm has been in business, we’ve heard a lot of people say, “It’s the principle that matters,” but we’ve almost never seen anyone actually spend their money that way. There is almost always something better to do with your time and money rather than spending it on unnecessary litigation.


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Robert D. Clements, Jr. and Associates represents clients seeking legal advice for issues such as divorce, child custody, personal injury, probate, insurance litigation, and business litigation throughout southeast Texas, including Brazoria County, Galveston County, Harris County, Fort Bend County, Sugar Land, and Richmond.

© 2009 by Robert D. Clements and Associates

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1600 East Highway 6, Suite 318
Alvin, Texas 77511

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