Under Texas law, all parents have a legal duty to support their children. In a divorce or custody scenario, a court can order the non-custodial parent to pay money each month to the custodial parent for the support of the children. The court can also order the non-custodial parent to provide additional support in the form of health insurance, medical support, and dental support. This article covers the basics of Texas child support, including how it is established and calculated, how and where it is paid, and how it can be modified or terminated.
The Basics of Texas Child Support.
- How Long is Child Support Payable? child support is payable until a child reaches age 18 or graduates from high school if the child is enrolled in an accredited program leading to a high school diploma. Child support will cease if a child is emancipated through marriage or removal of minority disability by court order, enlists and begins active military service, if the child dies, or if the parents remarry. Child support can continue indefinitely if it can be shown to the court that the child is disabled.
- Child Support Guidelines – there is a rebuttable presumption under Texas law that the amount of child support calculated under the “child support guidelines” is reasonable and in the child’s best interests. A court may determine that applying the support guidelines would be unjust or inappropriate under certain circumstances (factors a court can consider are outlined below).
- Calculating Net Monthly Resources for Guidelines Support – the court will look to all the obligor’s “resources,” including wages and salary (commissions, overtime, tips, and bonuses), interest, royalty income and rental income, and any other income actually received. “Other income” includes retirement income, capital gains, social security benefits, veterans’ benefits, unemployment benefits, disability benefits, spousal maintenance, and alimony). Basically, ALL income from ALL sources is included in monthly “resources,” with limited exceptions.
- Allowable Deductions – after an obligor’s resources are calculated, the court makes allowable deductions for social security and Medicare, federal and state income taxes, union dues, and health, dental, or cash medical expenses support for the children before the court.
- Wage & Salary Presumption – in the absence of evidence of a party’s resources, the court will presume that a party has income equal to the federal minimum wage for a 40-hour workweek upon which the support guidelines can be applied.
- The Net Resources “Cap” – the support guidelines are designed to apply to situations where the obligor’s monthly resources are no greater than $9,200.00 (or as adjusted every six years for inflation). The support guidelines are applied to the first $9,200.00 of net resources. This results in a “cap” on the monthly child support payable under the support guidelines. However, the court may order additional amounts of support depending on the income of the parties and the “proven needs” of the child.
- The “Guidelines” Formula – an obligor’s “Net Monthly Resources” is calculated as follows:
Gross Monthly Resources – Allowable Deductions = Net Monthly Resources
Once an obligor’s net monthly resources are calculated, the court applies a percentage depending on the number of children the obligor has a duty to support to determine the monthly child support payable. The resulting monthly guidelines support amount is rebuttably presumed to be in the child’s best interests.
OAG Child Support Calculator.
A simple way to estimate an obligor’s monthly guidelines for child support is to use the OAG Child Support Calculator. The calculator will give you a good idea of an obligor’s monthly “guidelines” child support obligation. A bit of caution, however. All figures input into the calculator must be accurate and should be based on actual data, not guesswork. If you use inaccurate data, the calculation will not be accurate (think “garbage in, garbage out”).
Deviation from the Support Guidelines.
While in most cases, courts use the “Child Support Guidelines” to determine the monthly child support amount, the court can determine that the application of the guidelines may be “unjust or inappropriate” under certain circumstances. This is commonly referred to as “deviating” from the support guidelines.
Non-exhaustive factors the court may consider in determining whether the guidelines would be unjust or inappropriate (justifying a deviation) include:
- age and needs of the child;
- ability of the parents to contribute to the support of the child;
- any financial resources available for the support of the child;
- amount of time of possession of and access to a child;
- childcare expenses incurred by either party to maintain gainful employment;
- whether a party has managing conservatorship or actual custody of another child;
- amount of alimony or spousal maintenance actually and currently being paid or received;
- expenses for a son or daughter for education beyond secondary school;
- whether a party receives an automobile, housing, or other benefits from another;
- provision for health care insurance and payment of uninsured medical expenses;
- special or extraordinary educational, health, or other expenses of a party or child;
- cost of travel to exercise possession of and access to a child;
- positive or negative cash flow from assets, including a business and investments;
- debts or debt service of either party; or
- any other reason consistent with the child’s best interest, taking into consideration the parents’ circumstances.
Please note that a “deviation” from the support guidelines can decrease or increase the amount of child support that would otherwise be payable under the support guidelines.
Low-Income Guidelines.
Recently, the Texas Legislature enacted child support guidelines for low-income obligors. In child support suits filed on or after September 1, 2021, a lower percentage of child support will be withheld if the noncustodial parent has $1,000.00 or less in monthly net resources. Below is a table of the guidelines that apply to low-income obligors:
One child = 15% of the noncustodial parent’s average monthly net resources
Two children = 20% of the noncustodial parent’s average monthly net resources
Three children = 25% of the noncustodial parent’s average monthly net resources
Four children = 30% of the noncustodial parent’s average monthly net resources
Five children = 35% of the noncustodial parent’s average monthly net resources
Six or more = not less than the amount for five children.
Intentional Unemployment or Underemployment.
A parent’s child support obligation is not limited to their ability to pay from current earnings. Instead, the amount of support payable can be based on a parent’s financial ability to pay from any available sources. Further, a court can order a parent to pay child support beyond the parent’s income that would ordinarily be payable under the support guidelines if the parent can potentially earn more money but has intentionally chosen not to. This is referred to as “intentional underemployment or unemployment.”
If the obligor’s actual income is significantly less than what the parent could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the parent. Thus, a parent who is qualified to obtain gainful employment cannot evade a support obligation by voluntarily remaining unemployed or underemployed.
To find that a parent is intentionally underemployed, the evidence must show that the parent reduced their income to decrease (or avoid) child support payments. The requisite intent may be inferred from the parent’s education, past earnings, business opportunities, or other earning potential. Once an obligor has offered proof of their current wages, the obligee bears the burden of demonstrating that the obligor is intentionally underemployed.
Retroactive Child Support.
In an original suit where child support has never been requested, the family code allows support to be made back to the date the parties separated. The court may order a parent to pay retroactive child support if the parent:
- has not previously been ordered to pay support for the child; and
- was not a party to a suit in which support was ordered.
In a modification case, the Court may award retroactive child support, but only back to the earlier of the date of service of citation or the respondent’s appearance in the suit to modify. In determining whether a custodial parent is entitled to retroactive child support payments and how much those payments should be, the court can consider several factors, including:
- net resources of the party from whom support is sought during the relevant period;
- whether the mother made an effort to contact and notify the father of his paternity;
- whether or not the father knew of his paternity or probable paternity;
- whether retroactive child support will impose undue financial hardship on the party; and
- whether the father provided actual support before the suit for retroactive support was filed.
It is presumed that retroactive child support cannot go back more than four years. However, this presumption can be refuted by evidence that the father from whom support is being sought knew or should have known that they were the child’s father and actively avoided making child support payments.
How Should Child Support Be Paid?
The Texas State Disbursement Unit (SDU) is the centralized location that receives, processes, and distributes child support payments. Under Texas law, all child support payments must be paid to the SDU. The Fort Bend County Child Support Office creates accounts within the Texas State Disbursement Unit (SDU) for Fort Bend County residents if the Office of the Attorney General is not handling the case. The Child Support Office can assist with payment inquiries, payment records, direct deposit forms, case audits, name and address changes, wage withholding, and termination of wage withholding. To seek assistance, you must complete an Information Request Form.
Wage Withholding.
There are several ways to make child support payments, including debit or credit card, mail, or auto-draft from your bank account. However, most child support payments are automatically deducted from an obligor’s paycheck through a wage withholding order. This is a good thing, as an employer’s wage withholding order ensures your payments are complete and on time. However, it may take your employer a few weeks to process your wage withholding order. Until that time, you are responsible for making your child support payments. Any payments you make should always be sent through the SDU.
Support for an Adult Disabled Child.
The court may order either or both parents to provide for the support of a child for an indefinite period if the court finds that:
- the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support; and
- the disability exists, or the cause of the disability is known, on or before the 18th birthday of the child.
A court that orders support for an adult disabled child shall designate a parent or another person having physical custody or guardianship of the child under a court order to receive the support for the child. The court may designate a child who is 18 years of age or older to receive the support directly. The court may also designate a special needs trust and provide that the support may be paid directly to the trust for the adult child’s benefit.
What if a Parent is Disabled?
In applying the child support guidelines for an obligor who has a disability and who is required to pay support for a child who receives benefits as a result of the obligor’s disability, the court shall apply the guidelines by determining the amount of child support that would be ordered under the child support guidelines and subtracting from that total the amount or value of the benefits paid to or for the child as a result of the obligor’s disability. In this situation, the guidelines support formula is:
Guidelines Child Support – Amount of SS Benefits Paid = CS Due from Disabled Obligor.
In applying the child support guidelines for an obligor who is receiving social security old-age benefits and who is required to pay support for a child who receives benefits as a result of the obligor’s receipt of old-age benefits, the court shall apply the guidelines by determining the amount of child support that would be ordered under the support guidelines and subtracting from that total the amount or the value of the benefits paid to or for the child as a result of the obligor’s receipt of social security old-age benefits.
Can Child Support Be Modified?
In general, a court may modify an order that provides for support of a child, including an order for health care coverage, if:
- the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier date of the court order or mediated settlement agreement on which the order is based; or
- it has been three years since the order was rendered or last modified, and the monthly amount of the child support award under the order differs by either 20 percent or $100.00 from the amount awarded in accordance with the child support guidelines.
A support order may be modified with regard to the amount ordered only as to obligations accruing after the earlier date of service of citation or appearance in the suit to modify.
When Should You Hire a Lawyer?
If there are contested issues in your divorce, custody case, or child support dispute, you should always consult with an experienced family law attorney regarding your rights. Family law matters can be complicated, and no two cases are alike. Without legal counsel, you may be at a severe disadvantage with long-term consequences for you and your children. An experienced child support and custody lawyer can help protect your rights and save you money while minimizing your anxiety and stress.
Don’t Forget to Mediate!
Most family law cases must be mediated at least once before proceeding to a final trial. In fact, most courts will also require mediation in cases involving disputes over custody, visitation, or child support hearing temporary orders. Armatys Millard can help with both! We understand the issues for temporary orders and for a final trial, and we will give you the benefit of our years of judicial experience and knowledge.
Armatys Millard Is Here to Help!
Walter Armatys and John Millard have significant family law experience, both as trial lawyers and as Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.
CONTACT US NOW
If you need to mediate or arbitrate a divorce, custody dispute, or other family law issue, Armatys Millard, PLLC can help. Check availability and book your session online or call our office at 281-313-6800. We’re here to help!
