By Earl N Jackson
Texas Board of Legal Specialization
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.
The “Obligor” is the person paying child support, the “Obligee” is the person receiving child support.
Child Support Guidelines
This is a mouthful: The Texas Child Support Guidelines presumptively set out percentage based child support obligations which depends upon the number of children which are before the court together with a credit if the Obligor has a duty to support other children. Let’s put it another way:
Texas Child Support is based upon percentages of net resources (“net resources” discussed below). The guideline percentage is multiplied against your net income for a child support amount. Net income for child support purposes is specifically defined as “net resources.”
If one child before the court, then 20% of net resources.
If two children before the court, then 25% of net resources.
If three children before the court, then 30% of net resources.
Assume you have two children by two different mothers. Only one child is before the court. Since you are under a duty to support the second child, you get a credit as to your child support obligation to the first child. 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, for a single child the 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. In Texas, this is maximized child support.
Number of Children Before the Court.
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 support.
Child Support Net Resources
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 support guidelines.
Needs of 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.
Retroactive Child Support
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 paternity;
- the obligor, Dad, had knowledge of his paternity;
- the order of retroactive child support will impose any hardship upon the obligor or his family and
- has the obligor provided any actual support.
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).
Application of Guidelines to Children of Disabled Obligors
If an obligor has a disability and is receiving social security disability income and is required to pay child support, the child support calculation shall be calculated by applying the guideline child support to the disability income of the obligor and subtracting the amount of benefits or the value of benefits paid to or for the child as a result of the obligors disability.
Application of Guidelines to Children of Obligors Who Receive Social Security
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 security.
Court-Ordered 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 over payment.
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.
Termination of 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.
Uniform Interstate Family Support Act
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 order.
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 this state.
- The individual “submits” to the jurisdiction – files some responsive pleading.
- The individual resided in this state with the child.
- 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 this state.
- The individual asserted parentage in the paternity registry.
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 of an Out of State Support Order:
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.