No Attorney’s Fees for Enforcement of Spousal Maintenance

Not one I would have guessed, but thanks to John Kappel’s attention to detail and thorough research, it turns out Texas law does not allow for a party to get attorney’s fees in a successful enforcement action on spousal maintenance.

Why? Because in Texas, attorney’s fees can only be granted if allowed by statute or a contract between the parties. Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013).

While attorney’s fees ARE allowed by statute for enforcement of child support (Tex. Fam. Code 157.167), or enforcement of a division of property (Tex. Fam. Code 9.014), no such statute exists for the enforcement of spousal maintenance.

International Parental Kidnapping – Yes, it’s real.

International parental kidnapping does exist, and does happen.  In fact, major news networks reported in September 2014 that a Beijing-bound United Airlines flight had to return to Dulles International Airport after law enforcement was made aware that a mother was illegally taking her child out of the country.  Fortunately, the father had a decree with language preventing the child from being removed from the United States without his approval and got wind of the travel before it was too late.

With today’s more mobile workforce and population, it is more important than ever to make sure you address these concerns with specific language in any decree or order regarding children.  Without having a court-order to rely on, a parent does not have as strong a basis to prevent these international parental kidnappings.  And once out of the country, it is very hard to force any return.  There are international laws to refer to and attempt to rely upon, but both countries must be signatories, and even then, the process is expensive, long, and the result uncertain.  You are better served by making sure language is in the decree or order preventing international travel without consent, and then making sure the proper law enforcement agencies have flagged the child’s passport in case the other parent attempts to flee.

Who Claims the Children as Dependents for Tax Purposes?

About this time of year, separated parents sometimes ask us who can claim the children on their taxes.  Many parents simply agree that the parent that would get the most benefit can claim the children.  Other parents have provisions in their orders directing the parties to claim or not to claim the children on their taxes.  But what about when there is no agreement?

The position the IRS takes is that the person having the children more than half the year can claim the children.  IRS Publication 504.

This means that the custodial parent, or the parent the children live with primarily, can claim the exemption.

So what happens if your orders say that one parent gets to claim the children and the other parent files first, claiming the children?  Realistically, the parent that should have been able to claim the children is going to have a hard time.  They will need to work with the IRS, the other party, and possibly an attorney well-versed in tax law to correct the issue.  The parent could also file an enforcement action or sue for the lost benefit.  The easiest way to avoid the issue?  Speak with the other parent, or make sure you file first.

What is a social study?

When parents can’t agree on who the kids will live with the Court will normally order a social study be conducted. This allows for a non-party, a trained professional, to look at the situation, the concerns of each party, and make a recommendation to the Court.  That recommendation is the social study.

This expert will interview each party as well as watch the interactions between the parties and the kids. They will normally also interview other children or adults that are living in the residences of the parties (should there be any) and do a home visit of each parties home to make sure it is appropriate / safe for the children.

Once the expert is done, they draft the social study. In some jurisdictions, only the attorneys and the judge will see the result.  This is because there have been times when parties have not liked the results of the social study and either share them with the children or even take out their frustrations on the children.

If you are going through a social study, be honest, participate fully, and make sure you comply fully with any requests. Talk with your attorney if you have questions.

A quick overview of the process in Dallas County can be found here.

New Alcohol Testing Tool – Soberlink

First, I found out about this from another attorney, not the manufacturer, so this is no advertisement.  Nor is it meant to be – I have no experience with this, I just looked it up and Soberlink seems like a useful tool.

Check it out for yourself, the website is

You can have random alcohol testing, or scheduled.  There will be a monthly fee, and a deposit for the equipment, which may keep this out of the hands of everyone, but I think the other upsides are great:

– takes note of location through GPS technology

– take a photo of the person giving the breath test

– sends this to email accounts of attorney’s and/or the parties

– pocket-sized

For those concerned about alcohol abuse, or accused of addiction, this is a useful remedy.

Jurisdiction Issues in the International Child Custody Context

When we get calls about international child custody cases, our first question is normally, “Is an order already in place.”  If the answer to the first is no, the second question is, “Where has the child lived the past six months.”

The reason for the two questions is to determine whether we can bring a child custody suit in the state of Texas.  Texas, along with the rest of the United States (except MA as of July 2011), has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  You can find the Wikipedia article, with a decent explanation, here.  The UCCJEA is found in chapter 152 of the Texas Family Code.  That chapter can be found here.

Even if an order is already in place, we need to review that order to see if it will fit the criteria of a ‘child custody determination.’  It only fits that criteria if it provides for legal custody, physical custody, or visitation with respect to a child.  Tex. Fam. Code 152.102(3).

These cases can be very technical, fact-specific, and you need to pay close attention to the timeline of the child’s life.  Not presenting your case effectively the first time, especially when another Court in another country is already involved, can mean that you get a ruling against you, which you then have to appeal.

An Example:

An interesting recent case is In the Interest of A.S.C.H, 05-11-01185-CV, which you can view here.   Mom was a British citizen, Dad was an American citizen.  The child was born in Texas in November of 2008, and although the child traveled to England a couple of times, the child’s final travel to England occurred in September of 2009.  For some reason, Dad was turned back at that time and returned to Texas, while Mom and child stayed in England.  Dad initiated a case first through the Hague Convention based on child abduction (very interesting in itself) and then a typical child custody case in Texas.  The child abduction case was resolved in Mom’s favor, but there were no findings as to legal custody, physical custody, or visitation, meaning that it was NOT a ‘child custody determination.’  After that resolution, Mom attacked the jurisdiction of the Texas court in the child custody suit, relying on a line in the foreign order that the child’s habitual residence was found to be England as of June 2009.  To make a long story short (you can read the opinion, which does an excellent job of explaining the law behind the decision), Dad was allowed to bring the suit in Texas since there was no other child custody order and there was a fact issue as to the home state of the child.

Cap on Child Support is Going Up

Whether you are an attorney, a parent receiving child support, or a parent paying child support, you want to know that starting September 1, 2013, it is very likely that the cap on net monthly income used to calculate child support will rise from $7,500.00 to $8,550.00.

That means for one child, an obligor who ‘caps out’  would see his child support rise from $1,500.00 to $1,710.00 per month.  That is a difference of $210.00 per month, $2,520.00 per year, and if a child was just born, an increase over the 18 years (at least) of child support owed of $45,360.00.

For obligors, it might be time to do a little additional financial planning – especially since that cap will likely rise again during the course of that child’s life.

For obligee’s, consider contacting the obligor and seeing if they would agree to forgo litigation and agree to the increase with an Agreed Order.  That saves you both the time and money of going to Court.

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