I plan on remarrying soon. My soon-to-be new spouse has substantial assets, including real property, brokerage investments, and retirement plans. I, on the other hand, have no assets. There is a clause in my divorce decree which states that, in the event of my death, my estate will be liable for any unpaid child support which, but for my death, I would have been liable or would have become liable to pay. I understand that Texas is a “community property” state. What can be done to ensure that my new spouse’s assets and earnings will not be used to satisfy my child support obligation from a previous relationship?
You are correct in your observation that “Texas is a ‘community property’ state.” Community property is defined, generally, as all property, or rights to receive property, that accrue during marriage. Thus, property owned by your intended new spouse prior to marriage would remain your intended new spouse’s separate property and, thus, not be available to satisfy your child support obligation.
Ordinarily, however, a community property interest will arise or be created in all property acquired by you and your intended new spouse during your marriage to your new spouse.
Typically, Texas courts do not consider “new spouse” income when ruling on requests to modify child support orders that were issued prior to the remarriage of Payor spouse. However, there is no statute that prohibits a Texas court from doing so.
Take the hypothetical example of Paul Payor, who pays child support for four (4) children to his ex-wife Mindy Mother. Paul’s annual “net resources” are $40,000.
Paul remarries. Paul’s new wife is Dr. Debra Deeppockets, whose annual “net resources” is $200,000.
Given these facts, Mindy’s lawyer, Larry Lawyer, might file a motion to modify child support, arguing that the existing child support order – which is based on Paul’s net resources of $40,000 per year, is insufficient to provide for Paul’s four (4) children and that a new child support order should issue based on Paul’s net resources of $120,000 per year. When asked by the Court how he calculated net resources of $120,000 per year, Larry Lawyer replies that half of Paul’s income of $40,000 per year – $20,000 – is now the community property of Paul’s new wife Dr. Deeppockets and half of the good doctor’s $200,000 per year income is now Paul’s community property. Thus, Paul’s “new” income – and the amount the Court should use to calculate child support – is no longer $40,000; it is now $20,000 plus $100,000, for a total of $120,000.
Paul objects, saying that Texas Family Code section 154.062 provides that “net resources” are to be determined based on a payor’s wages, salary, and other compensation for personal services. Larry Lawyer admits the truth of that statement, but then points out that section 154.062 also classifies as net resources “all other income actually being received. . . .”
Is Larry Lawyer’s argument likely to be successful? Probably not, although lawyers have been known to successfully argue points of law that seemingly have substantially less merit. But the reality is that even if he “wins,” Paul will still have lost; he will have lost if, for no other reason, because he will have had to defend against the attempt to include his new spouse’s income in the calculation of child support for his children from a previous relationship.
Paul’s new wife, Dr. Deeppockets – who is not even a party to the divorce action between Paul and Mindy – will also have lost. The good doctor will have lost simply by virtue of having had her income disclosed in the child support litigation between Paul and Mindy.
This entire scenario could likely have been avoided – or at least severely limited in depth and scope – if Paul and Dr. Deeppockets had done two things: (1) entered into a premarital agreement that prevented the creation of community property, and (2) filed separate tax returns. If Paul and Dr. Deeppockets had taken these two steps, it is doubtful that Larry Lawyer would have attempted to use the Doctor’s income as a basis for modifying Paul’s child support obligation. But even if he had tried, it would have been much easier – and less expensive – to defend against such a claim.
Although it would have been preferable for Paul to talk to his attorney before marrying Dr. Deeppockets (or for the doctor to talk to her attorney before marrying Paul), all may not be lost, even though they may have not done any legal planning prior to marriage. Even though it is not possible to “unring” the wedding bell, it may still be possible for the married couple Paul and Dr. Deeppockets to engage in effective legal planning.
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Lapin Law Offices, P.C.
5001 Spring Valley Road, Suite 400 East
Post Office Box 802234
Dallas, Texas 75380
Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.