Will Notarized Statement be Upheld in Court?

[boric]

What is the name of your state (only U.S. law)? Texas

Hi,

I am currently unmarried and pregnant and my child's father and I have amicably decided upon an amount that he will be responsible for paying each month in child support. I am too smart to rely upon a verbal agreement from any man, especially when it comes to my (unborn) child and money. I am not able to afford the assistance of an attorney, so I would like to draft my own agreement, which we would both sign in the presence of a notary and have notarized.

My question is, should he ever try to change his mind upon the agreed upon amount, do you think this notarized statement would be upheld in court?

It is important for me to know this, because in my state (Texas), there is a $1500 cap on child support, and the amount that he has agreed to is well beyond that cap (as his income is very high and he has honored my wishes to be a stay at home mom for at least the first year). If brought to court, do you think the judge would honor the amount that we agreed upon in the notarized statement, or automatically reduce it to the amount set and capped by the state?

Thank you in advance for your time and advice.

 

[ecmst12]

Useless. You need an actual court order.

 

[BL]

Without an accual court order he can give you any amount he pleases .It would be considered a gift each time though. If he then decided to stop the monthly gifts you could take it to court and let the court decide by calculations and the Law.

 

[CSO286]

What is the name of your state (only U.S. law)? Texas

Hi,

I am currently unmarried and pregnant and my child's father and I have amicably decided upon an amount that he will be responsible for paying each month in child support. I am too smart to rely upon a verbal agreement from any man, especially when it comes to my (unborn) child and money. I am not able to afford the assistance of an attorney, so I would like to draft my own agreement, which we would both sign in the presence of a notary and have notarized.

My question is, should he ever try to change his mind upon the agreed upon amount, do you think this notarized statement would be upheld in court?

Worhtless. The paper it is printed on will be worth more.
It you agree, sign it, get it notarized AND signed off by a Judge and filed with the courts, then it becomes an enforceable court order. That's a good thing.

It is important for me to know this, because in my state (Texas), there is a $1500 cap on child support, and the amount that he has agreed to is well beyond that cap (as his income is very high and he has honored my wishes to be a stay at home mom for at least the first year).

No there isn't> From Statute:

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.154.htm

Sec. 154.125. APPLICATION OF GUIDELINES TO NET RESOURCES. (a) The guidelines for the support of a child in this section are specifically designed to apply to situations in which the obligor's monthly net resources are not greater than $7,500 or the adjusted amount determined under Subsection (a-1), whichever is greater.(a-1) The dollar amount prescribed by Subsection (a) is adjusted every six years as necessary to reflect inflation. The Title IV-D agency shall compute the adjusted amount, to take effect beginning September 1 of the year of the adjustment, based on the percentage change in the consumer price index during the 72-month period preceding March 1 of the year of the adjustment, as rounded to the nearest $50 increment. The Title IV-D agency shall publish the adjusted amount in the Texas Register before September 1 of the year in which the adjustment takes effect. For purposes of this subsection, "consumer price index" has the meaning assigned by Section 341.201, Finance Code.(a-2) The initial adjustment required by Subsection (a-1) shall take effect September 1, 2013. This subsection expires September 1, 2014.
(b) If the obligor's monthly net resources are not greater than the amount provided by Subsection (a), the court shall presumptively apply the following schedule in rendering the child support order:

CHILD SUPPORT GUIDELINESBASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

1 child 20% of Obligor's Net Resources
2 children 25% of Obligor's Net Resources
3 children 30% of Obligor's Net Resources
4 children 35% of Obligor's Net Resources
5 children 40% of Obligor's Net Resources
6+ children Not less than the amount for 5 children

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.Amended by: Acts 2007, 80th Leg., R.S., Ch. 620, Sec. 2, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 767, Sec. 5, eff. June 19, 2009.

Sec. 154.126. APPLICATION OF GUIDELINES TO ADDITIONAL NET RESOURCES. (a) If the obligor's net resources exceed the amount provided by Section 154.125(a), the court shall presumptively apply the percentage guidelines to the portion of the obligor's net resources that does not exceed that amount. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.(b) The proper calculation of a child support order that exceeds the presumptive amount established for the portion of the obligor's net resources provided by Section 154.125(a) requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.Amended by: Acts 2007, 80th Leg., R.S., Ch. 620, Sec. 3, eff. September 1, 2007.

If brought to court, do you think the judge would honor the amount that we agreed upon in the notarized statement, or automatically reduce it to the amount set and capped by the state?

Thank you in advance for your time and advice.

Review the statutes.

 

[boric]

Okay. That makes sense. I'm glad I asked.

Thank you very much.

 

[boric]

CSO268,

I don't know the process that I would need to follow in order to get a judge to sign off and file it with the courts. I am assuming that would mean going to the OAG and filing for child support like everyone else, and having my day in court, am I correct?

Also, I've read that section of the law several times, and I've tried my best to interpret it, but it can be difficult for a layman , which is why I'm trying to go about this without a judge deciding the amount when we have already decided our own amount. From my understanding, the judge would award the $1500, unless I was able to prove that my child "needed" more money. I can't prove that.

 

[CSO286]

CSO268,

I don't know the process that I would need to follow in order to get a judge to sign off and file it with the courts. I am assuming that would mean going to the OAG and filing for child support like everyone else, and having my day in court, am I correct?

No, it doesn't. I am not familiar with TX rules/procedures, but if you and Dad agree, you can get a stipulated agreement drawn up, and submitted to the court. Once the Judge signs off, it's a court order.

Also, I've read that section of the law several times, and I've tried my best to interpret it, but it can be difficult for a layman , which is why I'm trying to go about this without a judge deciding the amount when we have already decided our own amount. From my understanding, the judge would award the $1500, unless I was able to prove that my child "needed" more money. I can't prove that.

If you can't prove the child's expenses exceed the $1500, why are you seeking support in excess of the amount needed to assist with the child's care and expenses?


If you cnanot prove the child requires more in support than what guidelines state, then there is no reason at all for the Judge/Magistrate/Referee to look beyond guidelines.....

 

[LdiJ]

CSO268,

I don't know the process that I would need to follow in order to get a judge to sign off and file it with the courts. I am assuming that would mean going to the OAG and filing for child support like everyone else, and having my day in court, am I correct?

Also, I've read that section of the law several times, and I've tried my best to interpret it, but it can be difficult for a layman , which is why I'm trying to go about this without a judge deciding the amount when we have already decided our own amount. From my understanding, the judge would award the $1500, unless I was able to prove that my child "needed" more money. I can't prove that.

You and he could file a stipulated agreement with the court. Once the court signs off on your agreement it would be enforceable.

 

[CSO286]

What is the name of your state (only U.S. law)? Texas

Hi,

I am currently unmarried and pregnant and my child's father

And actually none of my advice matters since there is no child right now and there is no father right now.

First things first.
When/if the the child is born, paternity would need to be established.

Next: Are you now on any type of public assistance (TANF, Meidicaid, Food stamps)? If you ever are, expect the State to get involved in the child support issues.

Expect that if a child support obligation is going to be established, you should also ensure an appropriate and enforceable parenting plan is done at the same time. (This protects EVERYONE.) I believe TX requires that, however I defer to more knowlegeable Seniors in that area.

 

[boric]

CSO286
Thank you for that info.

I am not seeking an amount greater than $1500, that is the amount he agreed upon. It is a long story. I am graduating college next week (congrats to me!), and as a full time student, I was not employed (I had no need to be, as I received enough money in scholarships, grants, and financial aid to sustain me during my studies). Now that I am pregnant and seeking work, it's been difficult to get hired. My family is in Michigan, and insists that I come back home so that I can have them as my support system (as I have no family here), and in living with my family for the first year, I would be able to be a stay at home mom without financial worries or burdens as I would have the support of my parents.

If I moved back to Michigan and had my baby, and filed for child support there, Michigan law has a formula that would award me a greater amount in child support that the amount that the father and I have agreed upon. There isn't a cap there. Since I am not employed, I am on Medicaid for Pregnant Women, and if I move to Michigan and get on Medicaid, the father would then be financially responsible for the hospital fees related to the birth of our child. Besides all of the fiscal matters, he wouldn't get to see or spend time with or bond with the child if I was in Michigan.

In short, it would be less expensive for HIM if I were to remain in Texas, and even though the amount he agreed upon is more than the court appointed $1500, it is overall far less than the amount he'd be ordered to pay if I moved back home. So it isn't about me seeking anything.

If I did move to Michigan, it would only be for the child's first year. After that, my plan would be to move back to Texas, and begin working. Then, at that time, I'd have no problem with any amount that the courts saw fit to award.

And I have absolutely no problem with the DNA/Paternity testing. I know that it is required legally, and I never want him to have the chance to be able to say that he has doubts. We’ll get that as soon as possible. But, in Michigan, they award paternity if he doesn’t show up to the court appointed date for establishing paternity. So he needs to do what he has to do to show up and take the test.

 

[eerelations]

If this situation is so amicable and the child's father is so generous, why doesn't he give you some money that you can use to pay a lawyer of your choice to answer all these questions and walk you through the process of making this all legal?

 

[boric]

eerelations,
Sorry, didn't know it was a problem to ask for free legal advice on freeadvice.com.

My question was whether or not a notarized statement would be upheld in court, and that was answered for me by the kind people here. I elaborated because I was asked a question.

I didn't know I needed my child's father to pay for me a lawyer just to ask whether or not a notarized statement was valid. Now that I see it isn't, I know I need to take the next step legally.

 

[CSO286]

CSO286
Thank you for that info.
I am not seeking an amount greater than $1500, that is the amount he agreed upon. It is a long story. I am graduating college next week (congrats to me!), and as a full time student, I was not employed (I had no need to be, as I received enough money in scholarships, grants, and financial aid to sustain me during my studies). Now that I am pregnant and seeking work, it's been difficult to get hired. My family is in Michigan, and insists that I come back home so that I can have them as my support system (as I have no family here), and in living with my family for the first year, I would be able to be a stay at home mom without financial worries or burdens as I would have the support of my parents.

Ok. Where do you intend to have the baby?

If I moved back to Michigan and had my baby, and filed for child support there, Michigan law has a formula that would award me a greater amount in child support that the amount that the father and I have agreed upon. There isn't a cap there.
Since I am not employed, I am on Medicaid for Pregnant Women, and if I move to Michigan and get on Medicaid, the father would then be financially responsible for the hospital fees related to the birth of our child. Besides all of the fiscal matters, he wouldn't get to see or spend time with or bond with the child if I was in Michigan.

You are wrong. If you have this child in MI, and live in MI, and are on Medicaid in MI, then MI has jurisdiction over the child support case. You won’t have a choice in the matter. Their laws will govern the establishment of paternity as well as how the child support order is calculated. The reverse is also true in TX.

In short, it would be less expensive for HIM if I were to remain in Texas, and even though the amount he agreed upon is more than the court appointed $1500, it is overall far less than the amount he'd be ordered to pay if I moved back home. So it isn't about me seeking anything.

OK.

If I did move to Michigan, it would only be for the child's first year. After that, my plan would be to move back to Texas, and begin working. Then, at that time, I'd have no problem with any amount that the courts saw fit to award.

And I have absolutely no problem with the DNA/Paternity testing. I know that it is required legally, and I never want him to have the chance to be able to say that he has doubts. We’ll get that as soon as possible. But, in Michigan, they award paternity if he doesn’t show up to the court appointed date for establishing paternity. So he needs to do what he has to do to show up and take the test.

Again, you don’t have all the correct information. DNA testing is NOT legally required. Paternity can be established by signing an AOP/ROP in the hospital or through the OAG in TX or the FOC in MI.

What you are not understanding is that you and Dad (when/if he is established as Dad) will not have the kind of control over drafting this agreement as you think. You are on Public Assistance (medicaid for PRegant Women IS public assistance). This means you assigned your rights to child support to the state. They will set the amount for ongoing support, as well as (possibly) some sort of judgment for medical/birth expenses. And all of this will occur in the state the child resides. You and Dad will not be able to set up your agreement and bypass the system. The State is providing your care right now, and the State will expect to be reimbursed for it.

 

[boric]

Okay, thank you CSO286.
I understand what you are saying. I do understand that the state in which I reside WILL decide upon court ordered child support. I've always understood that. But I also know that he agreed upon more than the state of Texas will mandate once paternity is established. I do understand that the judge in Texas would award a certain amount set by state statutes, and my question was if there was a notarized statement for him to give me more, would the judge honor that in addition to the court mandated order, or apply that as well, but now I understand that that would not be the case, so my original question has been answered.

I understand that in Michigan, the same would be true, the courts would order a set amount determined by the MI child support formula (which would simply be more than the amount Texas would order, since Texas has a cap).


Due to this advice about our agreed upon amount not holding up in any court, I have a bit more of the information that I need to make the best decision for me and my child going forward.

Thanks.

 

[boric]

You are wrong. If you have this child in MI, and live in MI, and are on Medicaid in MI, then MI has jurisdiction over the child support case. You won’t have a choice in the matter. Their laws will govern the establishment of paternity as well as how the child support order is calculated. The reverse is also true in TX.



What you are not understanding is that you and Dad (when/if he is established as Dad) will not have the kind of control over drafting this agreement as you think. You are on Public Assistance (medicaid for PRegant Women IS public assistance). This means you assigned your rights to child support to the state. They will set the amount for ongoing support, as well as (possibly) some sort of judgment for medical/birth expenses. And all of this will occur in the state the child resides. You and Dad will not be able to set up your agreement and bypass the system. The State is providing your care right now, and the State will expect to be reimbursed for it.

For the first statement, we agree. Maybe I worded it wrong, so you misunderstood me, but I thought I was saying the same thing you are saying.

As for the 2nd statement, I could be wrong, but I believe Texas state law regarding Medicaid for Pregnant women is different. Yes, I am on public assistance, but my child is not. I believe in Texas, that I have not assigned my rights to child support to the state unless my child is on Medicaid, or unless I apply for TANF benefits (but again, I could be wrong). From my understanding, Texas does not require the father to pay back costs of the birth to Medicaid (because his child was not covered, the woman was), but the state of Michigan does require the father to pay back costs of the birth.