Child Support


 

Child Support

Of all issues in family law, the issue of child support seems to cause the most anger and resentment with people. I have spoken with many people who went into a divorce thinking that the child support process wasn’t a big deal, and that since they were not rich, the judge wouldn’t order them to pay much. After the judge rules, and they are baffled by the amount they are required to pay, they come trying to find a way to avoid paying it.

The truth of the matter is that it is always easier to prevent overpaying on child support BEFORE the final decree is entered, rather than after. After a decree is entered, there is a presumption that it correctly states the situations of the parties involved, and it is much more difficult to change later. As such, I would encourage anyone who has children to consult a lawyer rather than attempting to do the divorce yourself. There are so many complex issues involving what each parent is required to pay, having a lawyer there to walk you through it and make sure you are representing your own income and expenses properly to the court can be vital.

If a final order has already been entered, and you are seeking a modification of the amount owed monthly based on a significant change in circumstances, keep in mind that that child support is largely a mathematical process once income levels are determined. The most important elements are determining the total income, and then determining if there are any offsetting circumstances, such as significant periods of possession. Sometimes parents can come to an agreement for child support amounts that fall outside of the norm, however that is the exception rather than a rule, especially among people who are looking to hire attorneys. It is important to go over with your attorney all of your sources of income if you are the non-custodial parent, and if you are the custodial parent, to go over areas where you expect the other parent may have income. These conversations are confidential, and your attorney can help you gauge what the likely result of a court order would be.

When a noncustodial parent must pay child support in Texas, it is calculated by multiplying the paying parent’s net income by a statutory percentage explained below.

 

Child Support Monthly Net Resources

I get a lot of people coming into my office confused about exactly what income counts for the purpose of determining child support. The answer is usually pretty much everything that can be proved as income counts for calculating child support, but there are a few limited exceptions to that.

In order to determine the amount of child support under statutory guidelines, Texas law applies a percentage formula to the “monthly net resources” of one parent or conservator ( the “obligor”). The percentage changes based on the number of children involved starting at 20% for the first child, and increasing by 5% per child after that until the maximum value. That part is simple enough, however the monthly net resource number to multiple that percent by is a little bit more complicated for a variety of reasons.

Child Support Income Inclusions

In general, your child support monthly net resources are the sum of all sources of income or assets from which income could be derived in a given year. Thus, “net resources” includes your salary, wages, tips, commissions, overtime pay, bonuses or any other compensation received for your personal services. This “net resources” calculation applies regardless of whether you are self-employed, a contract employee, or any other unique form of compensation.

Your “net resources” also includes any unemployment benefits, retirement pay, pension income, severance pay, social security benefits (other than supplemental security income), rental income from real or personal property, disability or workers’ compensation benefits, alimony, spousal maintenance, interest income, stock dividends, capital gains, trust distributions, annuity income, royalty income, gifts and prizes.

Bear in mind that the above list is not all-inclusive, either, and that any money received  by you will likely be included as part of your “net resources” unless it is a recognized as a specific exception within the Texas Family Code. In fact, when explaining the concept to my clients, it tends to be easier to focus on the various exceptions rather than trying to go over the complete laundry list of items that DO qualify, as the items that DON’T are few and far between.

Child Support Income Exclusions

Some of the exceptions to income being included in the child support calculations include your spouse’s income, the return of capital or the return of principal owed to you on a note; accounts receivable; certain welfare benefits (ex. food stamps or WIC benefits), and foster-care payments.

Finally, you may deduct a limited number of items from your child support monthly net resources. Deductible items are: (a) state income taxes, if any;  (b) social security taxes; (c) federal income taxes based on the tax rate for a single person claiming one personal exemption and the standard deduction; (d) union dues; (e) expenses for health insurance coverage for your child; and (f) cash medical support for your child.  However, you must bear in mind that you may not subtract deductions for contributions to an individual retirement account or 401(k) plan, insurance coverage for persons other than your child, employee stock purchases or similar items.

Child Support Pay Periods

The other minor point that tends to make things just that much more confusing, is that often people are paid biweekly. Biweekly pay is NOT the same as being paid twice a month, and the calculation changes slightly based on this distinction. If you are paid biweekly, you would multiply your net biweekly income by 26 (the amount of pay periods in a year) and then divide by 12 to reach your monthly net resources. If you are paid twice a month, you would multiply that number by 24 (the amount of pay periods in a year) and divide that number by 12. It is a small, but not insignificant difference that causes a lot of confusion for people. Obviously if you are paid once a month, that calculation becomes a lot easier and you can simply use that value without doing any additional math.

Child support is one of those areas where I find myself doing as much math as I do legal work, which is equally important to any of the legal work I do in this arena. Often as attorneys, we don’t have as much training in the areas of accounting and math as we do legal work, so its important to double check any numbers, as once they become an order of the court, it is a lot more difficult (and more expensive) to do anything about it.

Number of Children to be Supported

Once you’ve established the noncustodial parent’s net monthly income, multiply that number by a percentage that’s determined by how many children the paying parent is supporting.

1 child = multiply the monthly net income by 20%
2 children = multiply the monthly net income by 25%
3 children = multiply the monthly net income by 30%
4 children = multiply the monthly net income by 35%
5 children = multiply the monthly net income by 40%
For 6 or more children, the amount must be at least the same as for five children

EXAMPLE SUPPORT CALCULATION

Support calculation for a parent with $2,000 net monthly income and two children: $2,000 (net monthly income) x .25 (25% for two children) = $500 per month in monthly child support. 

If a paying parent’s net income is greater than $7,500 per month, the child support calculation applies only to the first $7,500; after that, the court may order additional support if the circumstances warrant a higher payment—but the additional amount can be no greater than “the proven needs of the child.” A parent who believes that guideline support is too high or too low can ask the court to make an adjustment, and there’s a long list of factors that the judge can consider, in Texas Family Code Section 154.123. Note, a parent who has an obligation to support multiple children living in different households will pay slightly less than the guideline amount for children living in the same household, based on some rather complicated calculations contained in Texas Family Code Section 154.128. Learn more about Child Custody.

Although the state of Texas does not provide an on-line calculator, Travis County has one. You can try it here: Travis County Child Support Calculator.

How long must the paying parent pay child support?

A noncustodial parent is required to pay child support until the child reaches the age of 18; the court can order support to continue until a child graduates from high school if the child is enrolled and regularly attending. A court may order child support for an indefinite period if the child is physically or mentally disabled. Child support can also end if the child marries or enlists in the military, becomes legally emancipated, or marries. As a part of a divorce settlement, the paying parent may agree to continue supporting a child through college, or the parents can agree to share college expenses.

How is child support paid?

Every child support order in Texas contains an income withholding order (IWO) that requires the paying parent’s employer to withhold the child support amount from the paying parent’s paycheck and send it to the state child support enforcement agency or a local registry, which in turn sends it to the other parent. However, self-employed parents or those who work on commission aren’t subject to income withholding orders and must pay support directly to the other parent. Parents can also agree to direct payments.  However, having payments go through an agency or registry means that there’s a clear record of payments, which is helpful in an action for enforcement.

Get more detailed information about understanding and calculating child support in Texas, click here.

If I am being denied access to my children, do I still have to pay my child support?

Yes. Texas law is clear that even if the other parent is denying you visitation, you are still required to pay your support and you can still be held in contempt for failure to pay. If you are being denied access to your children, you should pursue an enforcement action against the parent denying you access.

Am I required to guarantee child support payments with a life insurance policy?

You are not required, under Texas law, to guarantee your child support with a life insurance policy. However, many parents receiving support ask the paying parent to purchase a policy for that purpose, and some judges will include a provision in the divorce judgment requiring that the paying parent have life insurance. If you have an existing policy, the courts may require that you maintain your children as beneficiaries as long as you are required to pay child support.

Can the amount of child support be changed?

A child support order can be modified if circumstances change (or if enough time passes). A parent who is unable to pay child support because of losing a job or other financial problems can ask the court to modify the support order downward. A parent who is receiving support can ask for an increase based on the other parent getting a better job or otherwise earning or receiving more money, or based on changes in the receiving parent’s income or resources. In order to qualify for a modification of support, the person asking for the change must be able to show that the circumstances of the child or either parent have substantially changed since the order was made, unless three years have passed since the order was made. If three years have passed, then the person asking for the change must show that the amount of support under the current guidelines would differ by at least 20% or $100 from the original amount ordered. Only a court can change the amount of child support. Don’t rely on the other parent’s word that it’s okay to pay less support—you can always be required to pay the amount that was originally ordered, no matter how long the other parent waits to ask for it and no matter what verbal agreements you made.

What happens if someone doesn’t pay child support?

A parent who fails to pay child support can be subject to any of the following methods of collection:

  • Wage garnishment
  • Collection of lottery winnings
  • Interception of federal income tax refunds
  • Suspension or revocation of any driver’s licenses, professional or business licenses, or even fishing licenses
  • Suspension of passport
  • Contempt of court orders, which may result in prison or fines or both

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Timothy Hutton

Divorce and Custody Lawyer at Hutton Law, PLLC
Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas.

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