Aaron Tress

January 24, 2014 by Aaron Tress

Attorney’s Fees in Child Support Cases

In Tucker v. Thomas, 12-0183, 2013 WL 6509931 (Tex. Dec. 13, 2013), the Texas Supreme Court settled a disagreement among appellate courts as to whether attorney’s fees could be awarded as additional child support in non-enforcement modification suits. The majority of appellate courts that addressed this issue held that a trial court could not order a parent to pay attorney’s fees as additional child support in non-enforcement modification suits.

Here, the Supreme Court sided with the majority of appellate courts. The Court reasoned that trial courts have no inherent authority to characterize attorney’s fees as additional child support without express statutory authorization. §157.167(a) does authorize trial courts to characterize attorney’s fees as additional child support in enforcement modification suits. §157.167(a) (providing that an award of attorney’s fees may be enforced by the same means available for the enforcement of child support). On the other hand, the section addressing attorney’s fees in non-enforcement modification suits, §106.002, does not authorize trial courts to characterize attorney’s fees in this way. Rather, §106.002 only permits attorneys to collect fees through the “means available for the enforcement of a judgment for debt.” Thus, the Court concluded that the Legislature did not give trial courts this power.

December 13, 2013 by Aaron Tress

Exercises for Divorcing Parents

The Cooperative Parenting Institute designs material for divorcing parents. The following two exercises are taken from their workbook “Cooperative Parenting and Divorce: A Parent Guide to Effective Co-Parenting.”

Love Isn’t Easy . . . How Far Will You Go?

Directions: Slowly read each question asking yourself, “How far will I go?” Answer honestly. You will notice that the first five questions present easier decisions because they indicate eminent physical danger while the last five present emotional danger. Are you willing to risk placing your child in danger of any kind?

Would you jump into an ice-cold stream to save your child from drowning?
Would you give up one of your kidneys if it would save your child’s life?
Would you sell all your worldly possessions for costly life-saving surgery for your child?
Would you change your diet if your child’s doctor diagnosed your child with diabetes?
Would you give up smoking if your child had a high risk of lung disease or asthma?
Would you forgive your child’s other parent to help your child develop a healthy self-esteem?
Would you let go of the past to give your child a positive future?
Would you let go of bitterness/anger if your child developed anxiety symptoms?
Would you use impulse control if it would teach your child to think before he acted?
Would you give up being right so your child wouldn’t feel caught in the middle?

Divorce Rules

Directions: Post these rules on your refrigerator as a reminder of your commitment to care. Ask your child to let you know if you forget one of the rules. Never reprimand your child when he or she gives you this feedback.

Dear Mom and Dad, I’m just a kid, so please . . .

Do not talk badly about my other parent. (This makes me feel torn apart! It also makes me feel bad about myself!)
Do not talk badly about my other parent’s friends or relatives. (Let me care for someone even if you don’t.)
Do not talk about the “divorce” or other grown up stuff. (This makes me feel sick. Please leave me out of it!)
Do not talk about child support. (This makes me feel guilty or like I’m a possession instead of your kid.)
Do not make me feel bad when I enjoy my time with my other parent. (This makes me afraid to tell you things.)
Do not block my visits or prevent me from speaking to my other parent on the phone. (This makes me very upset.)
Do not interrupt my time with my parent by calling too much or by planning activities during our time together.
Do not argue in front of me or on the phone when I can hear you! (This just turns my stomach inside out!)
Do not ask me to spy for you when I am at my other parent’s home. (This makes me feel disloyal and dishonest!)
Do not ask me to keep secrets from my other parent. (Secrets make me feel anxious!)
Do not ask me questions about my other parent’s life or about our time together. (This makes me uncomfortable. So just let me tell you.)
Do not give me verbal messages to deliver to my other parent. (I end up feeling real anxious about their reaction. So please just call them, leave them a message at work or put a note into the mail.)
Do not send written messages with me or place them into my bag. (This also makes me uncomfortable.)
Do not blame my other parent for the divorce or for things that go wrong in your life. (This really feels terrible! I end up wanting to defend them from your attack. Sometimes it makes me feel sorry for you and that makes me want to protect you. I just want to be a kid, so please, please . . . stop putting me into the middle!)
Do let me take items to my other home as long as I can carry them back and forth. (Otherwise it feels like you are treating me like a possession.)
Do realize that I have two homes not just one. (It doesn’t matter how much time I spend there.)
Do not treat me like an adult, it causes way too much stress for me. (Please find a friend or therapist to talk with.)
Do not ignore my other parent or sit on opposite sides of the room during my school or sports activities. (This makes me very sad. Please act like parents and be friendly, even if it is just for me.)
Do not use guilt to pressure me to love you more, and do not ask me where I want to live.
Do let me love both of you and see each of you as much as possible! Be flexible even when it is not part of our regular schedule.

Thanks, your loving child

September 6, 2013 by Aaron Tress

How to Subpoena Bank Records

Read Texas Finance Code §59.006.

Bank record requests need to be sent to the bank’s registered agent. To find out who the registered agent is, call the Secretary of State.

See here for a model bank records request form.

August 14, 2013 by Aaron Tress

The Retirement Clause and Post-Divorce Property Divisions

A Final Decree of Divorce often uses boilerplate language. One example of boilerplate language in a Final Decree is the Retirement Clause. Although the meaning of the Retirement Clause may appear straightforward, questions arise when one party receives money after the divorce.

The Retirement Clause

The Retirement Clause reads as follow:

Assigning to wife/husband “All sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason of the wife’s/husband’s past, present, or future employment.”

Does the Retirement Clause Govern Community Property Received after Divorce?

Often, a lawsuit will arise when one of the ex-spouses receives money after the divorce. The first question, then, is to determine whether the Retirement Clause governs the newly received money. Generally, the clause governs because it operates as a catch-all. But courts may find reasons to rule differently.

In Stephens v. Marlowe, 20 S.W.3d 250 (Tex. App.—Texarkana 2000, no pet.), the court ruled that the ex-husband was not entitled to a portion of the money the ex-wife received. Jennifer argued that the retirement provision governed the $50,000 pension plan and awarded it all to her. James, however, claimed that the $50,000 pension was community property not yet divided by the divorce decree. The court awarded the money all to Jennifer reasoning that the retirement provision unambiguously awarded the money to Jennifer.

In Archibald v. Archibald, 01-08-00015-CV (Tex. App.—Houston [1st Dist.] June 4, 2009, no pet.), the court ruled that the ex-wife was not entitled to a portion of the money the ex-husband received. Larry received over $200,000 in overtime benefits after the divorce for work done during their marriage. Aurore argued that the court should award her a portion of the money because it constituted community property. The court ruled that the divorce decree assigned the overtime benefits to Larry.

In Boyd v. Boyd, 67 S.W.3d 398 (Tex. App.—Fort Worth 2002, no pet.), the retirement provision prescribed a 50/50 split between the spouses. Randall argued (1) that all future increases in value of his defined benefit plans and 401(k) plan were separate property, and (2) that his stock options were partly separate property. First, the court agreed that the post-divorce increases in value attributable to the Randall’s post-divorce contributions were separate property. However, increases in value not attributable to post-divorce contributions were community property. Second, the court ruled that his stock options were entirely community property because Randall’s opportunity to purchase the stock options was due to his management position with the company. So, although a 50/50 split in the divorce decree was uncommon, the divorce decree still governed the property’s division.

See also Pribyl v. Pribyl, 307 S.W.3d 882 (Tex. App.—Austin 2010, no pet.).

August 5, 2013 by Aaron Tress

Calculating Interest on Child Support Arrears

Child Support Calculators

There are two kinds of child support calculators. One type of calculator determines the current monthly amount the obligor owes to the obligee. This amount will change as the obligor’s income changes. The Texas Attorney General’s office hosts this kind of calculator on their webpage.

The second type of calculator determines the interest on backpay. An excellent product for calculating interest on child support arrears is Legal Math. Legal Math has many features and is able to take into account irregular payments and changing current child support obligations.

There are other considerations when calculating interest on child support arrears. First, Texas law has used different interest rates. Second, section 157.265 of the Texas Family Code applies simple interest rather than compound interest to child support arrears. Third, judgments confirming arrears lump the principle and interest into one figure.

Texas History of Interest Rates on Child Support Arrears

The following history is recorded in Castle v. Harris, 960 S.W.2d 140, 143 (Tex. App.–Corpus Christi 1997, no pet.) and In re M.C.C., 187 S.W.3d 383, 384 (Tex. 2006).

Effective on September 1, 1991, the Texas legislature implemented its first statute establishing interest on child support arrears. Section 14.34 (“Accrual of Prejudgment Interest on Child Support”) established that an unpaid child support obligation would accrue at the rate of 10% compounded monthly. Act of June 16, 1991, 72d Leg., R.S., ch. 467 §§ 1,6, 1991 Tex. Gen. Laws 1693, 1695.

Effective September 1, 1993, the legislature changed the interest rate from 10% compounded monthly to 12% simple interest per year. Act of May 15, 1993, 73d Leg., R.S., ch. 150 §§ 1,3, 1993 Tex. Gen. Laws 302.

Effective April 20, 1995, the legislature replaced section 14.34 with section 157.265 (“Accrual of Interest on Delinquent Child Support”) continuing with the interest rate of 12% simple interest per year. Act of April 20, 1995, 74th Leg., R.S., ch. 20 §§ 1, 4, 1995 Tex. Gen. Laws 113, 184, 282.

Effective January 1, 2002, the legislature changed the interest rate from 12% simple interest per year to its current rate of 6% simple interest per year. Act of May 18, 2001, 77th Leg., ch. 1491, § 1, R.S., 2001 Tex. Gen. Laws 5294.

These interest rate statutes apply prospectively but not retrospectively. In re M.C.C., 187 S.W.3d 383, 384 (Tex. 2006); In re A.R.J., 97 S.W.3d 833, 834-35 (Tex. App.–Dallas 2003, no pet.). This means that overdue child support payments are governed by the interest rate that was in effect at the time the child support payment became due.

Simple vs. Compound Interest

Section 157.265 of the Texas Family Code applies simple interest rather than compound interest to child support arrears. This means that interest only accumulates on the principle. Interest does not accumulate on the previously accumulated interest. An exception to this rule, however, is when a court makes a determination on the child support arrears.

Judgments Confirming Arrears Lump the Past Principle and the Past Interest into One Figure

Judgments determining the child support arrears often do not distinguish between how much of the judgment amount is principle and how much is accumulated interest. In these cases, the practice is to treat the judgment amount as the new principle.

Formulas for Calculating Interest on Child Support Arrears

If you have to calculate more than a couple months of interest, having a program may be faster than calculating interest by hand. The formula for calculating interest on child support arrears is

Interest = the principle x the interest rate x the number of days since the last transaction / the number of days in that year.

This method of calculating arrears benefits the obligee because interest accumulates each day. The Lubbock Attorney General’s Office, on the other hand, uses a different method of calculating interest. The OAG only calculates interest one time per month. This method benefits the obligor because the obligor could potentially receive 30 days of no interest every month on the payment amount.