Texas Child Support Basics

By Cordell & Cordell Attorney Sally Pretorius

TEXAS CHILD SUPPORT

In Texas, a person who is obligated to pay child support is called the "obligor," and the person entitled to receive child support is called the "obligee." The obligee is almost always the person who has primary possession of the child, meaning the person with whom the child lives with, incurs most of the living expenses, and has primary possession of the child.

The obligor is almost always the person who does not have primary possession of the children, and may or may not have possession and/or access to the children.

Another term frequently used in child support issues is the term "Guidelines." This term refers to the guidelines which are set forth in Texas law for the courts to use when calculating the amount of child support owed.

CHILD SUPPORT DURATION

Texas law provides that the court "may order either or both parents to support a child" until either the child turns 18 or graduates from high school (the later of the two), the child emancipates by marriage, the disabilities of the child are removed, or the child dies.

However, as further discussed below, if the child is deemed to be disabled by the court (physically or mentally), then the child may receive support indefinitely.

CALCULATING CHILD SUPPORT IN TEXAS

When calculating child support, the court will apply child support guidelines, which, are law based and are often referred to as "Guidelines." Guidelines set a basic minimum amount of child support, and the court can deviate from them after consideration of numerous factors (the deviation factors are discussed further below). The Guidelines are "presumed to be reasonable and an order of support conforming to the guidelines is presumed to be in the best interest of the child."

Guidelines are applied based on Net Monthly Income (calculation of net monthly income is discussed below). After determination of Net Monthly Income the court will then apply one of two standards: the first standard applies if an obligor’s net monthly income is less than $7,500.00, and the second standard applies if an obligor’s net monthly income is greater than $7,500.00.

If the obligor’s net monthly income is less than $7,500.00, then the court will look at the number of children, in a household, which are the subject of the suit (note that a different calculation applies if an obligor has children in two different households).

Texas law provides the following Guideline calculations: one child= 20% of Net Monthly Income (discussed further below); two children = 25% of Net Monthly Income; three children = 30% of Net Monthly Income; four children = 35% of Net Monthly Income; five children = 40% of Net Monthly Income; and six children = no less than 40% of Net Monthly Income.

If the obligor’s net monthly income is more than $7,500.00, then the court will apply the same calculations as above to the first $7,500.00 of net monthly income. If the obligee can prove that the child has “needs” warranting that more child support is needed, then the court can order that the obligee pay more child support. These “needs” can include tuition, extra medical costs, tutoring, and extra-curricular activities, among many other things.

However, there is a limit on the amount of child support that can be awarded. The court will limit the amount over guidelines to the proven needs of the child. For instance, if the obligee can only prove that the children’s needs are $500 more than what is minimum, then the court can only order that the obligor pay $500 more than the guidelines minimum.

CALCULATING MONTHLY INCOME

Texas law provides that in order to compute net monthly income, the court should first calculate gross income on an annual basis and then recalculate to determine the average monthly gross income, meaning the court will divide the annual net income/resources by 12 to come up with monthly net resources.

In determining gross income, the court will calculate net resources. Resources include: all wages and salary, interests, dividends, royalty income, self-employment income, net rental income, all other income actually being received, including severance, retirement, pensions, social security, unemployment, disability and workers’ compensation among numerous other income categories.

The court will then deduct the following: social security taxes; federal income tax; state income tax; union dues; health insurance for the child.

Note: If an obligor is intentionally being unemployed or underemployed (making less than they have the potential to) the court can impute an income on the obligor based on what the obligor’s net resources should be.

DEVIATION FROM CHILD SUPPORT GUIDELINES

The court may determine that Guidelines are unjust or inappropriate and may deviate. The court may deviate from guidelines if the evidence shows that the "best interests" of the child justify a deviation. The court can basically consider anything that is relevant including a number of statutory factors.

For example, the court can consider: the age and needs of the child, the ability of the parents to contribute to supporting the child, the amount of time and possession of and access to a child, financial resources available to support the child, child care expenses, special or extraordinary education, health care or other expenses of the child.

ADULT DISABLED CHILD

If a child requires "substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support," and if the disability existed or was known to exist on or before that child’s 18th birthday, then it is possible to seek support for the disabled child from one or both parents for an indefinite period.

A person has standing to sue for the support of a disabled child/adult if they are the parent or individual who has physical custody or guardianship of the child/adult under a court order. Another way to have standing to sue for indefinite support is if the child/adult themselves, is 18 or over; does not have a mental disability, and if the court determines that the child/adult is capable of managing their own financial affairs.

MEDICAL CHILD SUPPORT

In addition to ensuring that the child’s needs are financially taken care of, the court shall also order either of the parties to provide health insurance to the child. The court will look a numerous factors in considering who shall bear the cost of health insurance for the child.

For instance, the court will look to at the cost and quality of health insurance; inquire whether coverage is available at a reasonable cost through one of the parties’ employers or membership in a union, trade association or other organization, and inquire whether coverage is available through another source at a reasonable cost.

RETROACTIVE CHILD SUPPORT

If an obligor has not been paying child support, the court can order retroactive child support to be paid to the obligee. In determining the amount of retroactive child support, the court must look to the "net resources of the obligor during the relevant time period" and whether the mother had made any attempts to let the father known of his paternity (or the possibility of), if the father knew of his paternity (or the possibility of); whether an undue hardship will be imposed on the father and his father, and if the father had provided actual support or necessaries before the filing of the action.

The court can order retroactive child support to be paid for the four years preceding the date of the support petition. The court will presume that four years of retroactive is in the best interest of the child.

However, the obligee can argue that retroactive child support for more than four years is in the best interest of the child if they can show that the obligor "knew or should have known that the obligor was the father of the child" and "sought to avoid the establishment of a support obligation to the child."

The law in Texas with respect to domestic litigation is complicated and the court system can be difficult to maneuver. This article is only a brief review of some of the laws in Texas relating to child support and is not meant as a substitute for the advice of counsel. It is important to consult an attorney in each case before taking any action.