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What is the purpose of child support?
Under the Texas Family Code parents have a duty to support their child by providing the child with clothing, food, shelter, medical and dental care, and education. This duty is not limited to providing only the bare necessities.
Who pays child support?
When parents divorce, generally the parent who does not primarily reside with the child has the duty and obligation to pay child support. The parent who pays child support is the “obligor”. The parent who receives child support is the “obligee”. Grandparents may not be ordered to pay child support.
How is child support calculated?
Child support is calculated by applying the child-support guidelines to the obligor’s “net resources” and taking into consideration any other factors that might justify deviating from the child-support guidelines. This “gross” income should be calculated on an annual basis. “Available resources” include, but are not limited to, the following:
- 100% 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 income benefits other than supplemental security income, U. S. 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 sources, gifts and prizes, spousal maintenance and alimony.
The following items are deducted from the available resources in order to determine the net resources: (a) social security taxes, (b) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction, (c) state income tax; (d) union dues, (e) expenses for the cost of health insurance or cash medical support for the obligor’s child, and (f) if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.
Once the annual net resources are determined, that annual amount is divided by 12 in order to get a net monthly resources amount. Depending on the number of children, the obligor could pay from 20% to 50% of his net monthly resources as child support. The court may adjust the guidelines where the obligor supports children in more than one household. An automatic increase for future child support payments is an abuse of discretion.
The percentages apply if the obligor’s net monthly resources are $8,550.00 per month or less. If they are more than $8,500.00, the percentages will apply on the first $8,550.00. The court may order additional child support depending on the income of the parties and the proven needs of the child.
What happens if the obligor doesn’t have a job?
If there is no evidence of a person’s resources, it is presumed that the person has income equal to the federal minimum wage for a 40-hour work week. Even if the obligor is in jail or prison does not rebut the minimum wage presumption.
What happens if the obligor is intentionally unemployed or underemployed?
If the obligor’s actual income is less than what the obligor could earn because of his or her intentional unemployment or underemployment, the court may apply the child support guidelines to the obligor’s earning potential as well as the obligor’s financial ability to pay from other sources. A parent who has the ability to obtain gainful employment cannot avoid his child support obligation by being voluntarily unemployed. However, just because a parent is not earning what he or she could be earning, does not, by itself, mean that the parent is intentionally underemployed or unemployed. That is an issue for the court to determine.
Can the earnings of the obligor’s new spouse be included?
No. The court may not add any portion of a spouse’s net resources to the net resources of an obligor or obligee in order to calculate the amount of child support to be ordered. The court may not subtract the needs of a spouse, or of a dependent of a spouse, from the net resources of the obligor or obligee.
How long does child support last?
The duty to support the child begins when the child is born and lasts until any of the following events occurs:
- The child becomes 18 years old (except that it continues until the child graduates from high school if the child becomes 18 years old while still in high school), gets married, or has the disabilities of a minor removed by court order.
- The parent-child relationship is terminated.
- The child begins active service in the U. S. military.
- The child dies.
- The divorced parents of the child remarry each other.
Either or both parents may be ordered to provide support for a disabled child for an indefinite period if the court finds that the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support and that the disability exists, or the cause of the disability is known to exist, on or before the child’s 18th birthday.
How is child support paid?
Child support can be paid by periodic monthly payments; a lump-sum payment (a discount rate must be applied to determine the present value of the future payments); the purchase of an annuity; the setting aside of property to be administered for the support of the child; or any combination of these methods.
Where is child support paid?
Child support payments are to be made to the state disbursement unit in San Antonio, Texas or a local court registry which then forwards the payment to the obligee. This unit maintains the child support payment records. The obligor is advised not to make child support payments directly to the obligee. The obligor should keep an accurate record of proof of all child support payment made and of any offsets or credits to which he may be entitled.
Can the child support be modified?
Yes. A child support order, including an order for health-care coverage, may be modified if (a) there has been a material and substantial change in the circumstances affecting the child or person affected by the order since the date of the last order or (b) it has been 3 years since the date of the last order and the monthly amount of child support differs by either 20% or $100.00 from the amount that would be awarded now under the child support guidelines.
A change of circumstances includes (a) a change in custody of the child, (b) the release of the obligor from incarceration if the obligor’s child support obligation was abated, reduced or suspended during the time of incarceration, or (c) a material change in either the needs of the child or the ability of either parent to support the child.
What happens if I don’t pay child support?
A party who fails to timely and properly pay a child support obligation may be found in contempt of court. Each failure to make a child support payment is a separate act of contempt. “Contempt of court” is the failure of someone to obey a lawful court order, disrespect for the judge, or disruption of court proceedings through bad behavior. A judge may impose a civil sanction (a fine) or a criminal sanction (jail). A person found to be in criminal contempt may be put in jail for up to 180 days and/or pay a fine of up to $500.00 for each violation.
A child support order also may be enforced by (a) income withholding from the obligor’s paycheck, (b) placing a child support lien on the obligor’s real or personal property, including a bank account or income tax refund, and/or (c) suspension of the obligor’s license, including a driver’s license or a professional license.
Who pays the health insurance premium for the child?
The person who pays child support is also required to provide medical support for the child. This support can be provided by health insurance or a cash medical support order. The court must consider the cost, accessibility, and quality of health-care coverage available to the parties. Priority for the source of health coverage is given in the following order: (a) coverage through a parent’s employer (or union, trade association, or other organization); (b) another source, such as private insurance or a governmental agency or program, such as CHIPS or Medicaid; and (c) cash medical support order. The health insurance coverage must be at a “reasonable cost” to the obligor, which means that the cost does not exceed 9% of the obligor’s annual resources. “Accessible” health-care coverage means that it is available within a reasonable traveling distance and time from the child’s primary residence.
The payment of reasonable and necessary health-care expenses, including medical, dental and vision, of a child that are not reimbursed by health insurance or otherwise covered by cash medical support, as well as insurance deductibles or copayments paid by either party for the child, must be allocated between the parties, usually on a 50/50 basis.
Can my wages be garnished for child support?
Yes. A withholding order can be issued to an obligor’s employer when child support is to be paid in periodic payments, such as monthly child support. Unless the court finds there is good cause to suspend an employer’s withholding order, it will sign an order authorizing the employer to withhold directly from the obligor’s paycheck the amount of child support and medical support the obligor is required to pay. The actual amount withheld from each paycheck will depend on how frequently the obligor is paid. If the obligor changes jobs, the withholding order will apply to the new employer. The employer will withhold the appropriate amount and forward it to the state disbursement unit or local court registry which will then forward the child support to the obligee.
Can my former spouse and I agree to a child support amount?
Yes. The parents may enter into a written agreement regarding child support and for a modification of that agreement if the court finds that the agreement is in the best interest of the child and the agreement is filed with the court. If the court finds that the agreement is not in the child’s best interest, it may request the parents to submit a revised agreement or the court may enter its own order regarding child support.
Do I have to provide information to my spouse to calculate the amount of child support?
Yes. You are required to furnish information sufficient to accurately identify your net resources and ability to pay child support and to provide copies of income tax returns for the past 2 years, a financial statement, and current pay stubs.
If you want to know more about child support, contact Kim Pettit at (210) 558-4572 to schedule an appointment. I am ready to help you and to answer your questions about child support.