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RayAnswers, Lawyer
Category: Family Law
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Experience:  29 years as a family law lawyer .
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My husband just retired from 24 1/2 yrs in the military. His

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My husband just retired from 24 1/2 yrs in the military. His ex-wife receives 50% of his retirement pay. He also has a child support order for $1200 monthly. These 2 amounts of money together to his ex is 75% of the retirement pay. If he files a modification of child support does it calculate from the full retirement amount or his 50% after the ex gets hers? His support order is filed in Bell Texas.
Submitted: 3 years ago.
Category: Family Law
Expert:  RayAnswers replied 3 years ago.
Thanks for your question.They would credit him with spousal support payment before they calculate child support.What will be a hard sell here is the fact he voluntarily retired so be prepared to be grilled about that issue.This certainly shoudl reduce his net income.

Child Support Guidelines

http://www.dallas-divorce-lawyer.com/dallas_child_support.htm


Edited by RayAnswers on 10/1/2010 at 11:24 PM EST
Customer: replied 3 years ago.

He retired because of the stress of the job and the health issues that have arisen from that. He did retire voluntarily, but he will be receiving VA disability because of his health. He will not know the actual disability% till JAN 2011. Will that help with the 'Hard sell' aspect.

 

Thank you kindly

Melissa

Expert:  RayAnswers replied 3 years ago.
Yes it certainly may here.If he was divorced here in Texas there is a cap on "maintenance" which is our word for spousal support.It's three years.

EXAS FAMILY CODE
CHAPTER 8. MAINTENANCE

SUBCHAPTER A. GENERAL PROVISIONS

§ 8.001. Definitions

In this chapter:

(1) "Maintenance" means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.

(2) "Notice of application for a writ of withholding" means the document delivered to an obligor and filed with the court as required by this chapter for the nonjudicial determination of arrears and initiation of withholding for spousal maintenance.

(3) "Obligee" means a person entitled to receive payments under the terms of an order for spousal maintenance.

(4) "Obligor" means a person required to make periodic payments under the terms of an order for spousal maintenance.

(5) "Writ of withholding" means the document issued by the clerk of a court and delivered to an employer, directing that earnings be withheld for payment of spousal maintenance as provided by this chapter.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

SUBCHAPTER B. COURT-ORDERED MAINTENANCE

§ 8.051. Eligibility for Maintenance; Court Order

In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if:

(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:

(A) within two years before the date on which a suit for dissolution of the marriage is filed; or

(B) while the suit is pending; or

(2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:

(A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;

(B) is the custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or

(C) clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.054.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1999, 76th Leg., ch. 62, § 6.05, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 304, § 1, eff. Sept. 1, 1999. Renumbered from § 8.002 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.052. 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.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Renumbered from § 8.003 by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.053. Presumption

(a) Except as provided by Subsection (b), it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in:

(1) seeking suitable employment; or

(2) developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.

(b) This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because of an incapacitating physical or mental disability.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Renumbered from § 8.004 by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.054. Duration of Maintenance Order

(a) Except as provided by Subsection (b), a court:

(1) may not order maintenance that remains in effect for more than three years after the date of the order; and

(2) shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse's minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse's minimum reasonable needs through employment is substantially or totally diminished because of:

(A) physical or mental disability;

(B) duties as the custodian of an infant or young child; or

(C) another compelling impediment to gainful employment.

(b) If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues. The court may order periodic review of its order, on the request of either party or on its own motion, to determine whether the disability is continuing. The continuation of spousal maintenance under these circumstances is subject to a motion to modify as provided by Section 8.057.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Renumbered from § 8.005 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.055. Amount of Maintenance

(a) A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:

(1) $2,500; or

(2) 20 percent of the spouse's average monthly gross income.

(b) The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the obligee, considering employment or property received in the dissolution of the marriage or otherwise owned by the obligee that contributes to the minimum reasonable needs of the obligee.

(c) Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers' compensation benefits are excluded from maintenance.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Renumbered from § 8.006 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.056. Termination

(a) The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the obligee.

(b) After a hearing, the court shall terminate the maintenance order if the obligee cohabits with another person in a permanent place of abode on a continuing, conjugal basis.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Renumbered from § 8.007 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 29522
Experience: 29 years as a family law lawyer .
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