Everyone knows that raising a child is expensive. Child support payments were created so that both parents will contribute to the costs of raising a child.
A person who is responsible for paying child support is called an Obligor. To calculate what child support should be under current Texas law, first you determine the Obligor's monthly net resources.
Wage and salary income, self-employment income, severance pay, retirement pay, social security benefits (other than SSI), unemployment benefits, disability and workers' compensation benefits, alimony and spousal maintenance benefits, child support payments actually received, net rental income, interest income, capital gains, trust distributions, annuity income, gifts and prizes, and any other income actually received is included when determining net resources.
When self employment income, bonuses, and/or sales commissions are involved, sometimes you need to review two or three years of federal income tax returns to determine what someone's average income is due to income variance from month to month and year to year.
If the monthly net resources are $8,550 or less, the amount of child support is calculated as a percentage of that amount, depending on whether the children requiring support live in one household or more than one household.
Current Texas child support guidelines:
When all the children who require support live in the same household:
20% of Obligor's monthly net resources
25% of Obligor's monthly net resources
30% of Obligor's monthly net resources
35% of Obligor's monthly net resources
40% of Obligor's monthly net resources
six or more children
Not less than the amount for five children
If all of the children who require support do not reside in the same household, a different chart is used. This situation arises fairly often because someone starts a second family by having one or more children with a subsequent husband or wife. Please feel free to call me for information about that situation or about calculating child support if the Obligor's monthly net resources exceed $8,550 a month.
Under current federal minimum wage laws, the minimum wage in Texas is $7.25 (effective July, 2009). Texas does not have its own minimum wage law, so the federal minimum wage law applies. If you are not currently employed, many courts will assume you are earning minimum wage for purposes of calculating child support.
As an example, if you are earning minimum wage and have one child to support using the 20% Texas Attorney General guideline child support, you would be paying approximately $202 in monthly child support.
Child support in Texas is paid through a state agency in San Antonio. This way a neutral entity is keeping track of payments and can provide the parents, attorneys, and courts with detailed child support payment history and other information in a standard written format.
Unless someone is self employed, the preferred method of collecting child support involves serving the obligor's employer with a child support withholding order so that the money is withheld and paid to the obligee through a child support agency before the obligor even gets a chance to spend the money on something other than child support. Call Ken Crain at 512-630-3745 if you have questions about withholding orders for child support.
Many people are not aware that payment of child support cannot be tied to visitation. Some parents have been known to say that their ex will not get to see the kid(s) because the ex has not been paying child support. That is not the right way to think. If your ex has not been paying child support, you need to bring that to the attention of the judge by filing a motion to enforce child support payments. YOU ARE NOT ALLOWED TO WITHHOLD VISITATION SIMPLY BECAUSE SOMEONE IS BEHIND ON PAYING CHILD SUPPORT!!!! As my dad used to say, two wrongs do not make a right.
(If you have a child that you should pay child support for, then you should NEVER NEVER NEVER pay any child support in cash directly to the other parent. If there is a child support order, follow the directions in the child support order when paying your child support. If there is no child support order, at a minimum you should get a written receipt when paying child support to the custodial parent. You should always pay by personal check or money order and you should keep copies of all checks or money orders paying child support AND a written record of all payments made so that you will later be able to prove how much you have paid in child support. If there is no child support order, talk to an attorney about setting up an account with the child support office in San Antonio so that they will keep track of child support payments for you.)
Importantly, Texas Family Code Section 154.123 gives a Court additional factors to consider when setting child support.
"§ 154.123. ADDITIONAL FACTORS FOR COURT TO CONSIDER. (a) 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.
(b) 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:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the support of the child;
(3) any financial resources available for the support of the child;
(4) the amount of time of possession of and access to a child;
(5) 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;
(6) child care expenses incurred by either party in order to maintain gainful employment;
(7) whether either party has the managing conservatorship or actual physical custody of another child;
(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
(9) the expenses for a son or daughter for education beyond secondary school;
(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
(12) provision for health care insurance and payment of uninsured medical expenses;
(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
(14) the cost of travel in order to exercise possession of and access to a child;
(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;
(16) debts or debt service assumed by either party; and
(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
It is a fairly simple matter to have the child support payments adjusted up or down if the financial circumstances have changed since the date the existing child support order was signed by a judge. Obviously, this is an easier process if both parties agree that there is a need to change the child support payments.
However, even if both parties are not in agreement, you simply need to prepare a petition to modify the child support, get the other party served with your petition to modify, and set the matter for a court hearing to let the judge decide if the payments need to be adjusted up or down. Please feel free to call me at 512-630-3745 if you have questions about establishing child support at the appropriate amount or about changing the amount of child support payable in an existing court order.