Articles

Family Law:

2013 Changes to Child Support Amounts

Starting September 1, 2013, new child support guidelines become effective in Texas. Under the law prior to September 1st, a payer's child support obligation was based on his or her income up to the first $7,500 per month in net monthly resources. After September 1, child support will be calculated using the first $8,550 in net monthly resources.

New and modified court orders entered after September 1 will use the new "cap," and administrative reviews by the Office of the Attorney General will be based on the revised presumptive maximum of $8,550.

Before September 1, 2013 the maximum guideline child support was as follows: For one child: $1,500 ($7,500 x 20%); For two children: $1,875 ($7,500 x 25%); For three children: $2,250 ($7,500 x 30%)

Beginning September 1, 2013, the maximum guideline child support will be as follows: For one child: $1,710 ($8,550 x 20%); For two children: $2,137.50 ($8,550 x 25%); For three children: $2,565 ($8,550 x 30%)

If the payer's income is less than the presumptive max. then the guideline percentages apply to the actual monthly net resources. The Family Code allows courts to deviate above the maximum, or "cap," but only in specific circumstances.

2011 Changes to Spousal Support in Texas

The following applies to divorce cases filed on or after September 1, 2011.

"Maintenance" refers to post-divorce spousal support under Chapter 8 of the Family Code. Specifically, maintenance means an award of payments from the future income of one spouse for the support of the other spouse.

In cases involving family violence, if the spouse from whom maintenance is requested was convicted of or received deferred adjudication for an act of family violence against the other spouse or the other spouse's child, and the offense occurred within two years before the date the divorce was filed or while the suit was pending, the other spouse may be eligible for spousal maintenance.

In cases that do not involve family violence, the spouse seeking maintenance must have been married to the other spouse for 10 years or longer and lack the ability to earn sufficient income to provide for the spouse's minimum reasonable needs. A spouse is not eligible for spousal maintenance unless the spouse seeking maintenance will lack sufficient property, including the spouse's separate property, upon divorce to provide for the spouse's minimum reasonable needs.

For marriages lasting 10 years or more where a spouse is disabled, the spouse seeking maintenance has to be unable to earn sufficient income to provide for that spouse's minimum reasonable needs because of an incapacitating physical or mental disability.

Maintenance may also be awarded for marriages lasting 10 years or more where a spouse must care for a disabled child with a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs. The statute previously provided that the spouse caring for the disabled child could not qualify for spousal maintenance unless that spouse could not be employed outside the home. Now, the statute directs the court to assess that spouse's income and determine whether it is sufficient to meet their minimum reasonable needs.

Duration and Amount of Support

If the spouses have been married to each other for less than 10 years and the spouse is eligible due to family violence, the spouse may receive maintenance up to 5 years.

If the spouses were married to each other for at least 10 years but not more than 20 years, the spouse may receive maintenance up to 5 years.

If the spouses were married to each other for at least 20 years but not more than 30 years, the spouse may receive maintenance up to 7 years.

If the spouses were married to each other for 30 years or more, the spouse seeking maintenance may receive maintenance up to 10 years.

The court is to keep the maintenance order to the shortest reasonable period that allows the asking spouse to earn "sufficient income" to provide for their minimum reasonable needs. However, the above periods can be extended if the receiving spouse's ability to provide for their minimum reasonable needs is substantially or totally diminished because of a physical or mental disability, or because the spouse is the custodian of an infant or young child of the marriage, or another compelling impediment that hinders them from earning "sufficient income" to meet the spouse's minimum reasonable needs.

The maximum amount of monthly maintenance has increased to $5,000.00 or 20% of the paying spouse's gross earnings, whichever is less. "Gross income" is defined in a manner similar to calculating monthly child support.

Criminal Law

Recent Changes to Texas Criminal Law Statutes

Fraud and Offenses Against Public Administration

The last legislative session resulted in changes to Section 32.51 of the Penal Code which addresses the fraudulent use of, or possession of, "identifying information". This legislation changed the definition of identifying information. Now, identifying information is just a social security number or other government-issued identification number without reference to the person's name. Date of birth, however, still requires it be used in combination with the person's name.

Medicare/Medicaid Fraud

The Legislature expanded the tools available to the Medicaid Fraud Control Unit of the Office of the Attorney General. For example, the statute of limitations for Medicaid fraud has been increased from three years to seven years. Also, Article 18.21 of the Code of Criminal Procedure was amended to include an investigator commissioned by the attorney general under Section 402.009 of the Government Code as an "authorized peace officer." This permits them to request pen registers, trap and trace devices, access to stored communications, and mobile trafficking devices. The Legislature also amended the Penal Code such that conduct that constitutes an offense under Medicaid Fraud, as well as an offense under another section of the Code can be prosecuted under both sections.

Another statute has changed the type of evidence needed in a Medicare and Medicaid fraud case. Previously, where a person or company fraudulently bills hundreds or thousands of recipients' accounts at small dollar amounts, the prosecution had to call each recipient to testify at trial to establish that no product or service was ever ordered, delivered, or received. New legislation

provides that in cases involving a continuing scheme of fraud, the prosecution is not required to provide direct evidence as to each recipient. Instead, it is now sufficient to prove lack of consent, or lack of effective consent, by either direct or circumstantial evidence.

Theft of Service - Wages

Changes have been made to cases involving theft of wages, where an employer fails to pay workers the promised wage. The Penal Code has been amended so that it is an offense if the employer fails to make "full payment" after the service has been rendered when a demand for payment has been made. More importantly, the law adds a completely new subsection providing that "(1) if the compensation is or was to be paid on a periodic basis, the intent to avoid payment for a service may be formed at any time during or before a pay period; and (2) the partial payment of wages alone is not sufficient evidence to negate the actor's intent to avoid payment for a service." The penalty for theft of service ranges all the way from a Class C misdemeanor to a first degree felony, depending on the value of the service stolen.

Driving While Intoxicated

Starting September 1, 2011, the legislature created an "Extreme DWI Offense" for cases involving a test result of 0.15 or more. A first offense DWI is a Class B misdemeanor, punishable up to 6 months in jail. Now, the penalty has been increased if at the time an analysis is performed, the person's blood, breath, or urine showed an alcohol level of 0.15 or more. Another change in the law alters the information law enforcement must give a suspect before requesting that the person submit to the taking of a specimen. In cases where a warrant is obtained in order to get a blood specimen from the suspect for testing, the officer to inform the suspect of all the consequences of refusing a breath test, including that a warrant can be obtained if the suspect refuses. Specifically, the officer must inform the person that "if the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person..."