Child Support & Divorce

We like kids here in Texas. Child Support under Texas law is an extremely serious obligation. It even survives longer than you do. That’s right – we make you pay your child support even after you are dead. And if we catch you NOT paying (while you are still alive, of course) we can, will and do put you in jail. This is one of the few remaining forms of “debtor’s prison” in America.

If there were any children born to you and your ex, one of the two of you will have to pay child support. In the simplest terms, the one who gets the kids gets the child support, and the other one pays it. Generally speaking, you pay until all of your children reach the age of eighteen or graduate from high school. If you are at the point in your divorce where you are talking about child support, you already know who got the kids, so let’s talk about how the court determines the amount of child support that has to be paid.

The Texas Family Code has specific guidelines for computing the amount of child support that must be paid. For one child, the support amount is 20% of the payer’s net monthly resources. For two children, 25%; for three children, 30%; for four children, 35%; for five children, 40%. For six or more children, the court may not award LESS than 40%.

The percentages are straightforward. The trickier part is determining what the payer’s “net resources” are. According to the Texas Family Code, “resources” include:

1. 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips and bonuses);

1. interest, dividends and royalty income;

1. self employment income;

1. net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and

1. all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, 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:

1. return of principal or capital;

1. accounts receivable; or

1. benefits paid in accordance with aid for families with dependent children

To get from “resources” to NET resources, the court makes deductions from the resources we counted above. These deductions are for:

1. social security taxes;

1. federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;

1. state income tax;

1. union dues; and

1. expenses for the cost of health insurance or cash medical support for the obligor’s child ordered by the court

To break this down, you add up all your sources of income. Then subtract from that number the five items listed as deductions above (if any of them apply to you). If you have tallied up your income for the whole year, divide by twelve to get your monthly net resources. Once you know your monthly net resources, apply the percentage for the number of children you and your ex have TOGETHER (your child from a previous marriage doesn’t count at this stage). The number you get will be the amount of child support you must pay each month.

If you didn’t have a calculator handy for that discussion, fear not. The court will do the math for you. This amount is called the “presumptive” amount. It is presumed to be the amount that is in the best interest of your child or children. Remember the community property presumption we talked about earlier? Just like that presumption, this one may be overcome as well. The Texas Family Code says that 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;

1. the ability of the parents to contribute to the support of the child;

1. any financial resources available for the support of the child;

1. the amount of time of possession of and access to a child;

1. 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;

1. child care expenses incurred by either party in order to maintain gainful employment;

1. whether either party has the managing conservatorship or actual physical custody of another child;

1. the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

1. the expenses for a son or daughter for education beyond secondary school;

1. whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person or a business entity;

1. the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

1. provision for health care insurance and payment of uninsured medical expenses;

1. special or extraordinary educational, health care, or other expenses of the parties or of the child;

1. the cost of travel in order to exercise possession of and access to a child;

1. positive or negative cash flow from any real and personal property and assets, including a business and investments;

1. debts or debt service assumed by either party; and

1. any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents

This may give a misleading picture that there is more flexibility in the system than actually exists, however. You will need solid evidence to support your claim that the court should depart from the guideline amount, and the court must make findings “on the record” (meaning either in writing or dictated to the court reporter during a hearing). If the court does not make these findings to justify its departure from the guidelines, then the child support award may be struck down if there is an appeal. All this to say, you will most likely be “stuck” with the guideline amount.

One final note on child support: this is one of the few pieces of your final divorce decree that can be changed in the future. If you, your ex, or the children have a substantial change in circumstances, your lawyer can file a motion with the court to have your child support modified.