Texas Child Support
By Earl N Jackson
Child Support is about sharing the costs
of raising a child. Texas has promulgated Section 154.125 of the Texas
Family Code to set forth guidelines of varying percentages of net resources
to be paid as child support depending upon the number of children. It is a
rebuttable presumption that child support based upon the guidelines is in
the child's best interest.
Somebody is going to pay child support.
There is really no way of getting out of it. If you are the
"nonprimary" then you will financially support your child and provide health
insurance in almost all cases. Yes, this includes those circumstances where
the child was produced as a result of a "one night stand." Doesn't
matter how long the relationship was or the commitment of that
relationship, a child was produced and support will be paid. Daddy met
Momma at the pub, a child was produced then someone will pay. Note,
The father has the right to request a DNA test to make sure that it is his
child prior to being ordered to pay child support.
Lifestyle has nothing to do with child
support. The child may be involved in horseback riding, tennis, golf tour,
etc., but that doesn't have anything to do with the calculation.
If you are under a duty to support a
child not of the relationship which is at issue before the court (a child
not before the court), then the obligor is entitled to a credit. If
both parents are the primary for siblings (that is one parent may have one
child and the other parent may have that child's brother or sister), the
calculation for child support is outside of the discussion below.
is the person paying child support, the "Obligee" is the person receiving
Guidelines apply when the
obligor's (the person paying child support) net resources are $7,500.00 per
month or less. If net resources are greater than $7,500.00 per month, the
court will presumptively apply the percentage guidelines to the first $7,500
of net resources without any deductions. For example, single child child
support is $1,500.00 (.20 x $$7,500.00 = $1,500.00), for two children -
$1,875.00 (.25 x $7,500.00 = $1,875.00), for three children $2,250.00, etc.
Number of Children Before the
Children of the Marriage.
The top row across represents the number
of children which are before the Court. The left-most row addresses children
who are not before the Court but are a child(ren) of a previous relationship
that the obligor has a duty to support. In order to use the table
effectively, assume one child of the marriage and no children from a
previous relationship as to either party. In this example, guideline support
is 20% of net resources as to the obligor (person paying support). Another
example, assume two children from a previous relationship and two children
from the current marriage. Guidelines indicate that the obligor should pay
20.63 of net resources for child support. The reduction is in place because
the obligor has a duty to support children from each relationship.
Although the Texas Family Code provides
guidelines that are presumed to be in the child's best interest, it is
possible to rebut the presumption. Several factors that the courts may
consider in deciding to vary from the guidelines include, the needs of the
children, the ability of the party to pay child support, and the debts the
paying parent is assuming. Further, if a parent is having to travel long
distances in order to exercise visitation, the cost of travel (gasoline,
airfare, hotel expense) are factors that may support a variance from the
child support guidelines. In addition, if a paying parent is supporting a
child through college, this factor may also call for a reduction in child
Child support guidelines base their
percentages on "net resources." Net resources include more than just salary
but also includes money earned in the form of commissions, overtime pay,
retirement benefits, pensions, trust income, annuities, capital gains,
social security benefits, and gifts.
Deducted from gross "resources" are any
amounts paid for social security taxes, federal income taxes (based on the
tax rate for a single person claiming one personal exemption and the
standard deduction), union dues, and any expenses that he obligor pays for
the children's health insurance. These amounts are deducted from an
obligor's resources to determine net resources for applying the child
The Texas Family Code does not define
"needs of the child." The term, however, includes more than just "bare
necessities." To justify child support in excess of the percentage
guidelines, evidence of a child's special needs are required.
The Texas Supreme Court has had a
difficult time with defining special needs. In order to justify child
support greater than the child support guidelines, proof that the children's
needs have increased or are greater than the "average child" include special
education, advanced education, extracurricular activities (debate club,
scouts, sports), and clothing. In Giangrosso, 840 S.W.2d 769, the father
testified that the child had become more expensive to care for and support
because the child was growing and involved in more sporting activities. The
court held, "this testimony alone could serve as evidence that the child's
situation has so substantially changed as to warrant an increase in child
support obligations." In
Scott 926 S.W.2d 415, the mother
testified to actual costs associated with meeting the child's needs and
estimated costs associated with items the mother believed would benefit the
child but she could not afford. She went on to testify to other items
relevant to the child special needs. The appellate court stated, "the law
does not require a movant (the mother in this case) seeking child support
modification to go this far . . . the child's mother is in the best
position, as managing conservator, to explain the needs of the child.
The proper calculation of a child
support order that exceeds the presumptive amount for the first $7,500.00
requires that the entire amount of the presumptive award be subtracted from
the proven needs of the child. The remainder is then allocated between the
parties. Take an example, for one child, the presumptive amount of child
support is $1,500 based upon net resources of $7,500.00 or greater.
Assume hypothetically, that the total special proven needs of the child is
$2,500.00. Subtract the $1,500 from the $2,500 for a remainder of $1,000.00.
This $1,000.00 is the excess child support that shall be allocated between
the parties. The court does not have to order the obligor to pay the
$1,000.00 but may order him or her to pay only a portion of that $1,000.00
-- allocation between the parties. Note -- lifestyle choices are not special
proven needs of a child.
The court may order retroactive child
support. That is, order an obligor to pay child support that should have
been paid in the past but was not paid. Turn to Chapter 154.131 of the Texas
Family Code. In considering the order of retroactive child support, the
court shall consider the net resources of the obligor during the relevant
time period and whether
- the mother of the child had made any
previous attempts to notify the obligor of his paternity or probable
- the obligor, Dad, had knowledge of
- the order of retroactive child
support will impose any hardship upon the obligor or his family and
- has the obligor provided any actual
It is presumed that retroactive support
should be limited to the past four years from the date of the filing of the
petition for paternity. This presumption can be overcome by a showing of
that the obligor knew or should have
known that he was the father of the child; or
sought to avoid the establishment of
the child support obligation (Dad hid out - they will find you).
If an obligor is receiving social
security old age benefits and is required to pay child support for a child
who receives benefits as a result of the obligor's receipt of social
security, the court shall apply the guidelines to the social security income
and subtract from it the total amount of benefits or the value of benefits
paid to or for the child as a result of the obligor's old age social
Child Support for a Disabled Child
A child support order for a disabled child
can be indefinite - ages 19, 24, 25, etc. There is no cut off for graduation
from high-school or 18th birthday. In order to obtain disabled child
support, the child must suffer from a mental or physical disability that has
rendered the child incapable of self support and requires substantial care
and personal supervision. The disability or the cause of the disability must
be know to exist before the child's 18th birthday. If these requirements are
met, then a suit for disabled child support may be filed at any time
regardless of age as an independent cause of action.
In determining the amount of support, the
court shall consider any existing or future needs of the child, whether the
parent pays for or will pay for the care or supervision of the adult child;
the financial resources available to both parents, and any other financial
resources available for the support, care and supervision of the child.
Support Paid in Excess
of a Support Order
If an obligor is not in arrears on his or her
child support obligation and the child support obligation has terminated
(child is 18 and graduated high-school), the obligee is duty bound to return
to the obligor any child support payment or payments that exceeds the amount
of support ordered. If the obligee fails to do this, he or she can be sued
and the obligor is entitled to recover his or her attorney's fees in the
collection of the overpayment.
If an child support payment is received from
an obligor who is not in arrears and the child support order is still
operating, the agency (Attorney General) shall give effect to the expressed
intent of the obligor and if there is no expressed intent, the agency shall
then credit the excess amount to the obligor's future child support
obligation. So, if you overpaid your current child support order, the
overpayment should be applied to your future obligation.
Child Support Separation Rule
Think about this - the parties divorced and a
child support order was initiated. The parties then remarried - this
terminates the child support order. The parties then separate - they didn't
learn the first time around. A court can order retroactive child support
back to the date of the separation.
Child Support is Continued to be Paid After the Death of the Obligee
If the obligee dies, the child support is to
continue to be paid. It is to be paid proportionately for the benefit of
each surviving child named in the support order and NOT THE ESTATE OF THE
OBLIGEE. The payment is free of any creditor claim - a creditor cannot
execute against the payment. The payment shall be made to any person who has
assumed actual care of the child - including he obligor, a managing
conservator of the child; a guardian of the child if one has been appointed;
or the county clerk in the name of and for the account of the child. On
presentation of the obligee's death certificate, the court shall render an
order directing the payment of the child support.
Child support will terminate on the marriage
of the child. If the child subsequently divorces the child support remains
terminated - the child is emancipated. If the marriage is annulled, the
child support picks up again. An annulment is like no marriage at all.
Child support will terminate if the child's
disabilities (minority) are removed for general purposes.
Child support will terminate on the death of
the child or on the death of the obligor. As to the obligor, this is what
the statute says at 154.006. However, Fanning v. Fanning, 828
S.W.2d 135 - a 1992 Waco Court of Appeals case states that the statute
impliedly authorizes the court to make provision for child support as an
obligation of the obligor's estate. You see an express provision in this
regard in decrees of divorce - that the obligation survives the death of the
obligor. Also note, that many decrees requires the obligor to carry life
insurance to secure payment of the child support obligation.
Child support will terminate at the 18th
birthday of the child if the child is not enrolled in high-school. If the
child is enrolled, then it will terminate upon graduation of the child.
Child support terminates on the marriage or
remarriage of the obligor and obligee. This means -- if the obligor and
obligee marry one another or remarry one another then the child support
terminates. If the obligee marries someone else, or if the obligor marries
someone else - the child support does not terminate.
The Uniform Interstate Family Support Act is
about issuing a child support order or collecting on a child support order
where the parties reside in different states. Typically, we see this arise
out of momma's move to another state and is not married to the father of the
child. She then contacts that state's Attorney General to collect child
support from the father that has remained in Texas. Mom's state then
initiates a paternity/child support action. Texas becomes the responding
state. The confusion that arises out of the UIFSA (Uniform Interstate Family
Support Act) arises out of the concepts of initiating state, responding
state, personal jurisdiction, and modification of the
If Mom lives in Texas and no support order
has been issued, then Texas may serve as an initiating state. Conversely, if
no support order has been issued and the Respondent resides in Texas, a
Texas Court may serve as a responding state. A Texas Court may issue a
support order if the individual requesting the order resides in another
state or if the support enforcement agency seeking the order is located in
the other state. This creates that two-state action to establish a support
Jurisdiction over the nonresident. A court
must have jurisdiction to enter an order. Without jurisdiction, a court can
do nothing. Under the Family Support Act, a court of this state may exercise
jurisdiction over a nonresident if
- The individual is personally served in
- The individual "submits" to the
jurisdiction - files some responsive pleading.
- The individual resided in this state with
- The individual resided in this state and
provided prenatal expenses or support for the child.
- The child resides in this state as a
result of acts or directives of the individual.
- The individual engaged in sexual
intercourse in this state and the child was conceived by that act in
- The individual asserted parentage in the
There is a basis for jurisdiction under
the constitution - the Respondent has "minimal contacts" with the State
of Texas wherein he has availed himself of the privileges, powers and
protections of the State of Texas.
If anyone of the above factors are met, Texas
may then exercise jurisdiction over the Respondent. This provision allows
Texas to bring Dad into its' courts. If Dad resides in this state and mom is
in another state, the other state can exercise jurisdiction over dad if one
of the above factors are met because the other state has jurisdiction over
dad. The uniform act has been passed in almost every state. However, if the
initiating state has no jurisdiction over Dad then the initiating state must
send its child support action to this state - the responding state. This is
because the other state had no jurisdiction over Dad but Texas does. Texas
can now go after the paternity child support order.
Enforcement. If the other state has issued a
support order, this order may be enforced by sending a wage withholding
order directly to the obligors employer or by registration of the foreign
states order in Texas. Registration of a support order allows for specific
enforcement remedies - contempt.
Modification of the foreign states support
order: A Texas court cannot modify another state's support order unless the
child, the obligee and the obligor do not reside in the issuing state
(everybody moved); the petitioner who is a nonresident of this state seeks
modification and Texas has jurisdiction over the Respondent. Alternatively,
if Texas is the residence of the child or a party and all parties have filed
a consent (they all agree) for modification in the issuing state then Texas
may modify the order. If all the parties reside in Texas and the child does
not reside in the issuing state, a court of this state has jurisdiction to
enforce and to modify the issuing state's child support order in a
proceeding to register that order. A notice to the issuing state of
modification must be filed within 30 days in all courts where the original
order was registered.
The Jackson Law Group
Dallas Divorce Lawyers
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