Child Support Attorney
Setting & Enforcing Child Support
There are several different child support calculation schemes used by different states across the nation. Some look at the income of both parties in establishing child support. Others look only at the income of the non-custodial parent in doing so. Texas falls in the latter group.
A non-parent with custody of the child can receive child support by court order. In this event, both parents will usually pay child support.
The income of the spouse of the non-custodial parent is NOT taken into consideration when setting support to be paid by the non-custodial parent.
The larger the number of children before the court in a case, the higher the percentage applied to be net disposable resources of the non-custodial parent.
Other children for whom the non-custodial parent is already ordered to pay and is actually paying child support reduces the percentage applied to be net disposable resources of the non-custodial parent.
I. Disposable Resources Include:
(1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
(2) interest, dividends, and royalty income;
(3) self-employment income;
(4) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
(5) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected disability pension benefits, as defined by 38 U.S.C. Section 101(17) , unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
II. Disposable Resources Do NOT Include:
(1) return of principal or capital;
(2) accounts receivable;
(3) benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program; or
(4) payments for foster care of a child.
III. Allowable Deductions from Gross Resources Include:
(1) social security taxes;
(2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
(3) state income tax;
(4) union dues;
(5) expenses for the cost of health insurance, dental insurance, or cash medical support for the obligor’s child ordered by the court under Sections 154.182 and 154.1825 ; (In calculating the amount of the deduction for health care or dental coverage for a child under Subsection (d)(5), if the obligor has other minor dependents covered under the same health or dental insurance plan, the court shall divide the total cost to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan.)
and
(6) if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions. (For purposes of Subsection (d)(6), a nondiscretionary retirement plan is a plan to which an employee is required to contribute as a condition of employment like the Teacher Retirement System].))
IV. Percentages Presumptively Applicable to Net Disposable Resources:*
| The Calculation | |
|---|---|
| 1 child 20% of Obligor’s Net Resources | Disposable resources as defined by I and II above |
| 2 children 25% of Obligor’s Net Resources | Fewer Deductions defined in III above |
| 3 children 30% of Obligor’s Net Resources | Equals Net Disposable Resources (up to a maximum of $7,500.00 per month) |
| 4 children 35% of Obligor’s Net Resources | Times Percentage determined by IV above |
| 5 children 40% of Obligor’s Net Resources | Equals The actual monthly child support to be paid |
| 6+ children Not less than the amount for 5 children | |
| * up to $7,500.00 per month of the obligor’s net disposable resources |
MULTIPLE FAMILY ADJUSTED GUIDELINES
Where the obligor has other children in addition to the children before the court in a particular divorce, parentage or modification of support case, the percentage to be applied to the obligor’s net disposable resources decreases slightly.
For instance, if the obligor is before the court on the issue of support for two children but is already obligated to pay child support for two children of other relationships, the percentage applied to the two children before the court in the present case would drop from 25% to 20.63% because of the existing order of support for the other two children.
(% OF NET RESOURCES)
| (% OF NET RESOURCES) Number of children before the court | ||||||||
|---|---|---|---|---|---|---|---|---|
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | ||
| Number of other children for whom the obligor has a duty* of support | 0 | 20.00 | 25.00 | 30.00 | 35.00 | 40.00 | 40.00 | 40.00 |
| 1 | 17.50 | 22.50 | 27.38 | 32.20 | 37.33 | 37.71 | 38.00 | |
| 2 | 16.00 | 20.63 | 25.20 | 30.33 | 35.43 | 36.00 | 36.44 | |
| 3 | 14.75 | 19.00 | 24.00 | 29.00 | 34.00 | 34.67 | 35.20 | |
| 4 | 13.60 | 18.33 | 23.14 | 28.00 | 32.89 | 33.60 | 34.18 | |
| 5 | 13.33 | 17.86 | 22.50 | 27.22 | 32.00 | 32.73 | 33.33 | |
| 6 | 13.14 | 17.50 | 22.00 | 16.60 | 31.27 | 32.00 | 32.62 | |
| 7 | 13.00 | 17.22 | 21.60 | 36.09 | 30.67 | 31.82 | 32.00 | |
* duty means a court-imposed obligation or children of an existing marriage.
Additional Child Support – Health Insurance – Cash Medical Support
Child support in Texas also includes a provision of health care insurance of some kind for the child as well as a division of the uninsured health care costs of the child between the parents. The State’s default position on health care insurance requires that the non-custodial parent carry and pay the premiums for health care insurance for the child(ren) so long as the premiums do not exceed 9% of the obligor’s net disposable resources.
Where health care insurance is not available to the obligor at a reasonable cost or in cases were the custodial parent simply has better insurance through their employment than the obligor, the obligor will be required to pay additional child support in the form of cash medical support to reimburse the custodial parent for the cost of insuring the child. Not to exceed 9% of the non-custodial parent’s gross income.
Where neither parent has health care insurance available to them at a reasonable cost, the custodial parent will be ordered to apply for state-sponsored health care benefits for the child and, where such coverage requires payment of a monthly premium, the obligor will be ordered to reimburse that premium to the custodial parent as cash medical support.
Additional Child Support – Uninsured Health Care Costs
Typically, each parent will be ordered to pay 50% of the uninsured health care costs of the child. Your decree or order will set out the mechanism for these payments.
Child Support Due and Payable on the 1st of Every Month
But I don’t get paid monthly. I am paid 26 times a year or 24 times a year or weekly.
Not to worry. Your State Legislature has worked all of this out for you. The wage withholding order (which includes monthly child support, monthly cash medical support, as well as required monthly payments of any kind for arrearages on child support or cash medical support) will instruct your employer to divide up the monthly amount according to your employer’s pay schedule.
Above Guidelines Child Support
Child support is actually a basic subsistence issue, not a lifestyle issue. What does that mean? It means that in establishing the child support guidelines, the Legislature assumed that it could not micro-manage the lives of Texas families. Families live at different socio-economic levels. It was not the intent of the Legislature to level that particular playing field. Its only intent was to attempt to keep the status quo for the children. Assuming they were married, the parties and their children shared in the economic resources of the working parents whether that was an abundant amount of resources or a paltry amount. The Legislature assumed that the parents of the children prior to the divorce used a certain percentage of their earnings each month to pay for the needs of the children of the marriage. Through mathematical calculations and algorithms far beyond my mathematical comprehension, the Legislature assumed that if the obligor were ordered to pay a specific percentage of his/her earnings to the custodial parent as child and cash medical support, the custodial parent would be expending a similar percentage of his/her earnings in the actual support and care of the child, including medical needs. The fact that those combined contributions from earnings do not afford the custodial parent to rear the child in the lifestyle (private vs. public education, a car for the child’s teenage years, trips overseas, etc.) which the custodial parent deems appropriate is not grounds for the imposition of above-guidelines child support.
There are, however, instances where the child’s needs clearly outstrip the net yield of the combined resources available for the support of a child under the guidelines. In that event, the court has the power order the obligor to pay a percentage of his/her net resources above that set by the guidelines. But, these instances are rare and the courts are diligent in protecting the obligor from bogus claims of additional needs of the child. Those additional needs must be proven to exist – not just opinion evidence. The custodial parent must prove that “the application of the guidelines would be unjust and inappropriate under the circumstances” of the child and the parents.
The statutory considerations are as follows:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the support of the child;
(3) any financial resources available for the support of the child;
(4) the amount of time of possession of and access to a child;
(5) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
(6) child care expenses incurred by either party in order to maintain gainful employment;
(7) whether either party has the managing conservatorship or actual physical custody of another child;
(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
(9) the expenses for a son or daughter for education beyond secondary school;
(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
(12) provision for health care insurance and payment of uninsured medical expenses;
(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
(14) the cost of travel in order to exercise possession of and access to a child;
(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;
(16) debts or debt service assumed by either party; and
(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
CHILD SUPPORT BEYOND THE AGE OF 18:
Where a child has a known disability at the time of the original parentage or divorce order or a disability occurs or becomes apparent after the entry of that order but before the child attains age 18, the Court has the power to order lifetime support for the child. This order for the support of the disabled person (before and after the age of 18) can be modified during the life of the disabled person.
ENFORCEMENT OF SUPPORT ORDERS:
Frequently referred to as contempt actions, this enforcement of support orders is quasi-criminal, meaning that if found to have contumaciously (with contempt – you had the ability but chose not to comply with the order) violated the court order for support, an obligor can lose his freedom (go to jail for up to 6 months for each violation), be ordered to pay a fine, have the custodial parent’s attorney fees assessed against the obligor, and be placed on community supervision, in addition to being ordered to pay all proven arrearages plus interest.
SUBSEQUENTLY BORN CHILDREN
Life and people “move on” after significant events. Following a divorce or after the entry of a parentage order establishing paternity and setting child support, the parents may remarry and have other children or have other children of other non-marital relationships. That often raises the question about the appropriateness and actual payment of the child support amount set in the first order.
Let us be clear. The birth of subsequent children does not cancel out one’s obligation to pay child support in all of its forms for the first child. Stated another way, one cannot shift the burden of supporting a child solely to the other parent or to the state or national government simply by going out and making other babies. That is the first truism.
Second truism. While some consideration is given by the courts to subsequently born children, please be clear that the consideration given is very little from the financial standpoint of the child-support paying parent. As the number of subsequently born children increases, the amount of consideration given to them in terms of the child-support paying parents gets less and less.
Let’s look at the chart presented above to demonstrate this fact.
At the time of the divorce or the parentage action, you had two children with the mother. You were ordered to pay 25% of the net disposable earnings as child support for your children. Then, you subsequent had a child with your girlfriend, but that relationship did not last. Finally, you met the love of your life, married again and had two more children. At this point, you are paying
25% of your disposable earnings for children of the first relationship, plus
16% of your disposable earnings for the child of the 2nd relationships (because she went to the Attorney General’s Office and got a parentage and support order.
41% of your disposable earnings are going to pay for child support for children who do not live with you and with whom you may or may not have a relationship AND
you and your new wife are supporting the children of that relationship on the reduced income.
Is there anything to be done? Yes, but the remedy carries certain costs, i.e, the cost of litigation. You could file suit against both of the mothers of your other three children seeking to reduce your child support obligations. Assuming you were successful, what would be the result?
19% of your disposable earnings for children of the first relationship, plus
14.75% of your disposable earnings for the child of the 2nd relationship
33.75% of your disposable earnings – a decrease of 7.25%
So, if your disposable monthly income is $7,500 per month you would save $543.75 per month, a nice amount of money per month and over $6,525.00 per year. But if you only made $3,500 per month in disposable earnings, your decrease will only be $253.75 per month or about $3,045.00 per year.
But, that reduction does not include the cost of getting this decrease and that is two separate lawsuits. The two suits cannot be combined even if the order, by happenstance, came out of the same court. You can use the same lawyer for both cases, but you have filing fees and costs of litigation in two separate cases. It is possible, but extremely unlikely, that the custodial parents would agree to reduce the child support to eliminate some portion of those costs, but…
Making babies is the easy part. Rearing those babies in your particular circumstances with your unique limitations and problems is a whole different matter and the court does not take those unique limitations and problems into consideration, except as provided by statute. The present statutory child support scheme was put in place by the Legislature to provide for predictability and uniformity in child support awards across the state as well as to eliminate the accusations of gender bias and political and financial influence. It is rigid and pretty much blind-by-law to your circumstances.