Chapter 154 of the Texas Family Code sets forth the law in Texas regarding child support and medical support. Lawsuits regarding child support occur sometimes as part of a suit for dissolution of marriage, sometimes as a result of a lawsuit initiated by the Texas Attorney General’s office, and sometimes occur as a result of suits brought by a parent or another party independent of a suit for dissolution of marriage.
While it is always important that you have a lawyer with you to negotiate the best outcome possible regarding child support, IF YOU ARE THE OBLIGOR OR THE PERSON WHO OWES CHILD SUPPORT, IT IS ESPECIALLY IMPORTANT THAT AS SOON AS YOUR INCOME IS REDUCED OR YOU HAVE ADDITIONAL CHILDREN THAT YOU PETITION THE COURT TO MODIFY THE AMOUNT OF YOUR CHILD SUPPORT DOWNWARD. IF YOU DO NOT MODIFY DOWNWARD AT THE TIME THAT YOUR INCOME DECREASES OR YOUR EXPENSES INCREASE FROM ADDITIONAL CHILDREN, AND ARE UNABLE TO CONTINUE TO PAY CHILD SUPPORT AT THE HIGHER LEVEL, ARREARAGES WILL ACCRUE, AND YOU WILL NOT LATER BE ABLE TO GET THEM REDUCED WITHOUT THE AGREEMENT OF THE OTHER PARENT, THUS PUTTING YOURSELF AT RISK OF POSSIBLY BEING HELD IN CONTEMPT FOR NONPAYMENT AND POSSIBLY BEING JAILED. THE ATTORNEY GENERAL’S OFFICE WILL NOT MODIFY YOUR CHILD SUPPORT DOWNWARD WHEN YOU REPORT A REDUCTION IN INCOME.
Presently the guidelines for child support in Texas are designed to apply to situations in which the obligor’s monthly net resources are not greater than $7,500.00.
If the obligor's (the person who owes child support) monthly net resources are not greater than the $7,500.00 the court shall presumptively apply the following schedule in rendering the child support order:
CHILD SUPPORT GUIDELINES
BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR
1 child 20% of Obligor's Net Resources
2 children 25% of Obligor's Net Resources
3 children 30% of Obligor's Net Resources
4 children 35% of Obligor's Net Resources
5 children 40% of Obligor's Net Resources
6+ children Not less than the amount for 5 children
If the obligor supports children in more than one household (including his or her own household, but not including stepchildren) the chart used to determine the percentage of child support owed in a case can be found at Texas Family Code Section 154.129, which can be found on the internet at http://www.statutes.legis.state.tx.us/?link=FA.
Obligor on Disability
If an obligor is on disability, child support is calculated according to the guidelines and then the amount paid for the child as part of the obligor’s disability is subtracted from the guideline amount in determining the final amount of support owed.
Obligor on Social Security Old Age Benefits
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 social security old age benefits, 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 of benefits 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.
Deviation from Child Support Guidelines
The court can deviate from the child support guidelines in determining support when taking into account the additional factors set forth in Texas Family Code Section 154.123:
The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.
In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:
- The age and needs of the child;
- The ability of the parents to contribute to the support of the child;
- Any financial resources available for the support of the child;
- The amount of time of possession of and access to a child;
- The amount of the obligee's net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
- Child care expenses incurred by either party in order to maintain gainful employment;
- Whether either party has the managing conservatorship or actual physical custody of another child;
- The amount of alimony or spousal maintenance actually and currently being paid or received by a party;
- The expenses for a son or daughter for education beyond secondary school;
- Whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
- The amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
- Provision for health care insurance and payment of uninsured medical expenses;
- Special or extraordinary educational, health care, or other expenses of the parties or of the child;
- The cost of travel in order to exercise possession of and access to a child;
- Positive or negative cash flow from any real and personal property and assets, including a business and investments;
- Debts or debt service assumed by either party; and
- Any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
Child Support by Agreement of the Parties
Pursuant to Texas Family Code Section 154.124 “the parties may enter into a written agreement containing provisions for support and for modification of the agreement, including variations from the child support guidelines”
“If the court finds that the agreement is in the child’s best interest, the court shall render an order in accordance with the agreement.” “If the court finds that the agreement is not in the child’s best interest, the court may request the parties to submit a revised agreement or the court may render an order for support of the child.”
A Petition for child support can request four years of retroactive support. When a Petition for child support is filed, it is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child.
However, if it is determined that the person from whom support is sought knew or should have known that the obligor was the father of the child for whom support is sought; and
sought to avoid the establishment of a support obligation to the child, the four years of retroactive support presumption is rebutted, and the Petitioner, whether the State through the Office of the Attorney General, or a private individual, can go back further than four years in its request for retroactive support.
Computation of Net Resources
Guidelines for Computing Net Resources
The guidelines for computing net resources (until a change in the law on September 1, 2018) are as follows:
Sec. 154.062. NET RESOURCES. (a) The court shall calculate net resources for the purpose of determining child support liability as provided by this section.
- 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
- Interest, dividends, and royalty income;
- Self-employment income;
- Net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
- All other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected disability pension benefits, as defined by 38 U.S.C. Section 101 (17), unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
Resources do not include:
- Return of principal or capital;
- Accounts receivable;
- Benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program; or
- Payments for foster care of a child.
The court shall deduct the following items from resources to determine the net resources available for child support:
- Social security taxes;
- Federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
- State income tax;
- Union dues;
- Expenses for the cost of health insurance or cash medical support for the obligor's child ordered by the court under Section 154.182; and
- If the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.
Wage and Salary Presumption in the Absence of Evidence of Income
In the absence of evidence of a party's resources, the court shall presume that the party has income equal to the federal minimum wage for a 40-hour week to which the support guidelines may be applied.
Wage and Salary Presumption Not Applicable to the Incarcerated
The presumption required in the absence of evidence of income does not apply if the court finds that the party is subject to an order of confinement that exceeds 90 days and is incarcerated in a local, state, or federal jail or prison at the time the court makes the determination regarding the party's income.
Child support is usually supposed to be paid through the child’s high school graduation, or if the child graduates before the age of 18, through his or her 18th birthday.
Texas Family Code Sec. 154.002. CHILD SUPPORT THROUGH HIGH SCHOOL GRADUATION. (a) The court may render an original support order, or modify an existing order, providing child support past the 18th birthday of the child to be paid only if the child is:
- under Chapter 25, Education Code, in an accredited secondary school in a program leading toward a high school diploma;
- under Section130.008 Education Code, in courses for joint high school and junior college credit; or
- on a full-time basis in a private secondary school in a program leading toward a high school diploma; and
- the minimum attendance requirements of Subchapter C, Chapter 25, Education Code; or
the minimum attendance requirements imposed by the school in which the child is enrolled, if the child is enrolled in a private secondary school.
- The request for a support order through high school graduation may be filed before or after the child's 18th birthday.
- The order for periodic support may provide that payments continue through the end of the month in which the child graduates.
An order to pay child support, unless otherwise agreed in writing or expressly provided in the order or as provided by Subsection (b) below, the child support order terminates on:
- The marriage of the child;
- The removal of the child's disabilities for general purposes;
- The death of the child;
A finding by a court that the child:
(a) is 18 years of age or older; and has failed to comply with the enrollment or attendance requirements described by Section 154.002(a).
- The issuance under Section 161.005 of an order terminating the parent-child relationship between the obligor and the child based on the results of genetic testing that exclude the obligor as the child's genetic father; or
- If the child enlists in the armed forces of the United States, the date on which the child begins active service as defined by 10 U.S.C. Section 101.
(b) Unless a nonparent or agency has been appointed conservator of the child under Chapter153, the order for current child support, and any provision relating to conservatorship, possession, or access terminates on the marriage or remarriage of the obligor and obligee to each other.
Notwithstanding the above, if a child is disabled, a parent can be ordered to pay child support through an indefinite period of time, including into adulthood. Texas Family Code Section 154.001.
The obligor is typically required to pay for medical insurance and/or health care in addition to the ordered child support payments. Beginning on September 1, 2018 the obligor shall presumptively be ordered to provide dental support as well.
Texas Family Code Sec. 154.183. MEDICAL SUPPORT ADDITIONAL SUPPORT DUTY OF OBLIGOR.
(a) An amount that an obligor is ordered to pay as medical support for the child under this chapter, including the costs of health insurance coverage or cash medical support ….
- Is in addition to the amount that the obligor is required to pay for child support under the guidelines for child support;
- Is a child support obligation; and
- May be enforced by any means available for the enforcement of child support, including withholding from earnings….
(b) If the court finds and states in the child support order that the obligee will maintain health insurance coverage for the child at the obligee's expense, the court shall increase the amount of child support to be paid by the obligor in an amount not exceeding the actual cost to the obligee for maintaining health insurance coverage….
(c) As additional child support, the court shall allocate between the parties, according to their circumstances:
- The reasonable and necessary health care expenses, including vision and dental expenses, of the child that are not reimbursed by health insurance or are not otherwise covered by the amount of cash medical support ordered under Section 154.182 (b)(3); and
- Amounts paid by either party as deductibles or copayments in obtaining health care services for the child covered under a health insurance policy.
Usually, if the child qualifies for Medicaid or CHIP, the Title IV-D Court, which is the court out of which the Attorney General Child Support Division operates, in determining the amount of the support will order the obligor to pay a certain amount to the State which the State recoups towards the medical expenses the child receives from the State. (There are two Title IV-D Associate Courts at this time in El Paso County, Texas).
CHILD SUPPORT WITHHOLDING
Most child and medical support is withheld through withholding orders sent to the employers of the obligors. The employers then send withheld amounts to the State Disbursement Unit in San Antonio, Texas, which then redistributes the amounts withheld to the obligee and to the State of Texas in the event some of the money is collected to offset payments by the State for the support of the child or children. If the obligor is self-employed, he or she should send the payments directly to the State Disbursement Unit. Withholding for El Paso County, Texas cases is arranged by the Office of the Attorney General Child Support Division or by the El Paso County Domestic Relations Office. It is highly recommended that payments for support be made by the obligor directly to the State Disbursement Unit rather than directly to the obligee, to ensure that the obligor gets full credit for support payments.