Primary custody priviledges . . .

[Alysen]

I live in Denton County, Texas, and am going through an amicable divorce after 14 years of marriage. The only sticky part is that though the kids will be with me the majority of the time, my husband wants to be the 'primary' in a joint custody arrangement. Doesn't this mean I would be unable to get government assistance (though he makes well into six figures, I'm starting back out fresh after years of being a stay at home mom), child support, tax breaks, etc? We really wanted to be able to do this without going through lawyers and courts, but this is his only major demand. I don't have any money to fight him.

 

[Ohiogal]

I live in Denton County, Texas, and am going through an amicable divorce after 14 years of marriage. The only sticky part is that though the kids will be with me the majority of the time, my husband wants to be the 'primary' in a joint custody arrangement. Doesn't this mean I would be unable to get government assistance (though he makes well into six figures, I'm starting back out fresh after years of being a stay at home mom), child support, tax breaks, etc? We really wanted to be able to do this without going through lawyers and courts, but this is his only major demand. I don't have any money to fight him.

How exactly does he think he will be primary if the children are with you the majority of the time and you have JOINT custody?

 

[basylica]

being in the same area, i'd wager so he doesn't have to pay child support.
since (as far as i've found) the primary custodian gets childsupport and the non-primary doesn't pay a thing.

if he's making 6 figs and you are making little....he's probably worried about paying you CS. I'd fight it, if I were you!

even "expanded visitation" gives him the kids 40% of the time anyway.

 

[mistoffolees]

being in the same area, i'd wager so he doesn't have to pay child support.
since (as far as i've found) the primary custodian gets childsupport and the non-primary doesn't pay a thing.

if he's making 6 figs and you are making little....he's probably worried about paying you CS. I'd fight it, if I were you!

even "expanded visitation" gives him the kids 40% of the time anyway.

That's not the way it works.

Whichever parents has the kids the most nights is considered to have primary custody, but that's irrelevant, too. You can have more nights but still pay child support.

What IS relevant in every state child support calculator I've seen is the number of nights the child spends at each home and the relative salaries (plus a few other factors). Plug in the facts into the state child support calculator and then plug in the numbers for what the husband is proposing.

 

[LdiJ]

I live in Denton County, Texas, and am going through an amicable divorce after 14 years of marriage. The only sticky part is that though the kids will be with me the majority of the time, my husband wants to be the 'primary' in a joint custody arrangement. Doesn't this mean I would be unable to get government assistance (though he makes well into six figures, I'm starting back out fresh after years of being a stay at home mom), child support, tax breaks, etc? We really wanted to be able to do this without going through lawyers and courts, but this is his only major demand. I don't have any money to fight him.

I would never agree to that. It causes all kinds of complications.

 

[Zigner]

I'll bet he's looking for the tax deduction...

 

[LdiJ]

I'll bet he's looking for the tax deduction...

It could be that, or it could be other factors as well as that. However, the bottom line is that its a very bad idea and the OP should not entertain it at all.

 

[mistoffolees]

I'll bet he's looking for the tax deduction...

That's a different matter and may be quite reasonable. There are plenty of cases where the deduction isn't worth much to one spouse but may be worth a lot to the other.

In my case, our decree does not address it, so IRS rules apply. Since my daughter actually spends more nights with me, I could claim it. However, the last couple of years, I had business losses high enough that there was no advantage to having the deduction, so I turned it over to my ex.

 

[basylica]

as far as i've been told, researched, lookedup.... texas is pretty cut and dry. NCP pays % of income, doesn't matter who makes more or whatever else.
I could make 300K and my ex could make min wage. he'd still have to pay 25%. if given 50/50, nobody pays.
far as i've found, the PCP's income has no bearing whatsoever on CS. not in texas anyway.

Texas loves expanded visitation, which gives like a 60/40 split or there abouts. unless the NCP doesn't wish to exercise of course.

I was also advised that standard in this area anyway, if there is 1 child the deduction goes to PCP, two and the deductions are split (mine are, I had to agree)

so it would depend on # of kids.....unless a parent gave up the option. but the #1 mediator in DFW told me that standard practice in the courts here is 1 to PCP, 2 split....3 two to PCP, etc.

 

[mistoffolees]

as far as i've been told, researched, lookedup.... texas is pretty cut and dry. NCP pays % of income, doesn't matter who makes more or whatever else.
I could make 300K and my ex could make min wage. he'd still have to pay 25%. if given 50/50, nobody pays.
far as i've found, the PCP's income has no bearing whatsoever on CS. not in texas anyway.

Texas loves expanded visitation, which gives like a 60/40 split or there abouts. unless the NCP doesn't wish to exercise of course.

I was also advised that standard in this area anyway, if there is 1 child the deduction goes to PCP, two and the deductions are split (mine are, I had to agree)

so it would depend on # of kids.....unless a parent gave up the option. but the #1 mediator in DFW told me that standard practice in the courts here is 1 to PCP, 2 split....3 two to PCP, etc.

Your interpretation of child support seems about right, on the surface:
Texas Child Support Calculator - AllLaw.com
However, note that the calculator says (near the top) that it is not meant to be used for shared custody situations. I think you need to search harder (or ask an attorney) what would be typical in a shared custody situation. I suspect that if his income is 10 times yours, he's going to be paying child support, even in a shared custody situation.

I don't know what the standard is for deductions in TX so you may be right. HOWEVER, keep in mind that IRS rules MUST be followed. The parent where the children spend the most nights automatically gets all the deductions unless the appropriate form is signed by the custodial parent. So if you are the custodial parent and the court orders that you give one or more deductions to the other parent, you will need to sign the form (I can't remember the number, but it might be 8443) EVERY YEAR.

Now that you've clarified the situation, let's go back to basics. As I understand it, you're still trying to reach an agreement on child support, custody, etc and hope to reach an amicable agreement without spending excess money on lawyers (keep in mind, however, that it's only amicable as long as BOTH of you agree). I would suggest:

1. Even though you're trying to avoid expenses, I would have an attorney review whatever you agree to before submitting it to the court.

2. Before doing anything, I would consult with an attorney. Many attorneys will give you an initial consultation for free (so you can ask questions like the shared custody / support question above), but even if you have to pay a couple hundred dollars, it will probably be helpful for you to go into the negotiations with an idea of what to expect.

3. I would first settle the child custody decision on the basis of what's best for the kids. If the two of you live far apart, there's no way that a 50:50 arrangement will work. If you're unable to agree on things like school, etc, it won't work. If, OTOH, you're close together, have flexible schedules, and are willing to work to make shared custody work, it may well be what's best for the kids. But this decision should be made on the basis of the kids' needs, not your or your husband's financial needs. After all, if you can't agree, the court will make the decision on the basis of the kids' needs.

4. Once the custody decision is made, then look at child support. While I think TX is too extreme (fixed percentage of income doesn't take into account any special circumstances. For example, if you were independently wealthy and your stbx were barely getting by, it's not particularly fair), that is what the court will use if the two of you can't agree. Assuming that you will have primary custody, start with the TX calculation (remember, they use a max of $6 K per month in the calculation) to get an idea of what the court would order. That may change if you have shared custody (but rely on whatever the lawyer tells you in step 2 or any research you can find on shared custody).

However, since you're presumably trying to negotiate what's fair rather than simply throwing it to the court to decide, I would look at what it would be in surrounding states. In OK, for example, the max figure used in the calculations is about $150 K per year, although support can be increased if income is higher. At the same time, both parent's income is considered, as is the number of nights the children spend in each home. REMEMBER, this has no legal validity in TX and would mean absolutely nothing to the judge. It might, however, give you an idea of what different people would consider to be fair. If the two of you aren't interested in considering other options, then just throw it back on the courts and accept the state guidelines.

Finally, since you state that it's an amicable divorce, you may end up having to rely on stbx's sense of fairness. I agreed to considerably higher child support and alimony payments than my state guidelines because my money will eventually go to my daughter, anyway, and I'd rather have her be comfortable at both homes. Your ex may feel the same way.

It may be helpful to have mediation to settle the issues if you can't agree. It will be cheaper than a legal battle and probably more satisfactory. Given your circumstances, it is likely that your ex would be expected to pay for it.

Bottom line, though, is that if your ex wants to play hardball, you could end up with a custody battle - which doesn't help anyone. You really need to get that initial consultation with an attorney. If possible, you may want to contact legal aid.

 

[basylica]

In texas you are required by the courts to do mediation before they will actually hear a divorce case, unless you do one of those amicable single lawyer deals which almost never work.

You can attend mediation without a lawyer. I freaked about not having one just before mine, but to be honest, you really don't need one if you feel good about your negotiating skills.
standard practice is that you and he are in seperate rooms, mediator makes a list of what you or he wants to start (usually start with petitioning party, so in my case the ex) and makes a list of all the points of the agreement.
what you want to do custody wise, what you want to do $$ wise, what you want to do with property, etc.

Then she goes to the other party, reads off, counter offer is presented, and back she/he goes to first party, and so on.
my ex is VERY angry with me, and I never thought mediation would work and it did. so speaks highly of the one we used.
mine was considered one of the best in the area (garland I think is where her office was?) and charged 1K per person for 8hrs.
Honestly tho, I didn't need a lawyer, she would look stuff up in tx state law books, make suggestions.....
and I did really rather well

mediations in TX are setup to be binding legal agreements from the moment the parties sign and judges will uphold them in court. Once it's done you can present the finished copy of your divorce decree (if you don't do lawyers before, pay one a few hundred to draft decree using mediation) to the court, judge will call up the original petitioning party, you read a form letter, he/she stamps the doc and you are done.

"expanded" visitation in texas by default:
1st, 3rd, 5th weekends of every month (counted by fridays in a month) from thurs-monday if they exercise option to keep them til school monday and pickup after school thurs.
and 2nd and 4th thursdays overnight.
during the school year only, thursdays go away totally in summer.
summer the NCP gets 30 days of their choosing or july1-30th by default, with PCP getting one fri-sun weekend.
PCP gets to "veto" one weekend during the summer so they have 3 weeks uninterrupted.
every other holiday.....ncp gets odd thanksgiving, even xmas and easter.
PCP gets even thanks, odd xmas and easter.

by default the NCP pays health ins, 50% of uncovered medical, 20% of income plus 5% for each additional child.

Texas Family Law Info: Visitation and the Standard Possession Order

I'm in collin co OP....so i'm in your neighborhood...

 

[Isis1]

the tax form is 8332 form. just FYI!

 

[mistoffolees]

the tax form is 8332 form. just FYI!

Thanks. I always confuse W-2 and W-4, too.