Deviating from Texas Child Support Guidelines

The amount of child support based on the statutory percentage applied to an obligor’s monthly net resources is presumptive, but a court may vary from the guidelines amount – upward or downward – based on a number of different factors.

Relevant factors (not an exhaustive list) may include:

• The age and needs of the child;
• The child’s educational expenses beyond secondary school;
• Payment of health insurance or uninsured medical expenses for the child;
• Extraordinary educational, healthcare or other expenses of the parents or the child
• Whether either parent has managing conservatorship or possession of another child;
• Each party’s period of possession of and access to the child;
• Travel costs for exercising possession of and access to the child;
• Child care expenses;
• Each parent’s respective ability to contribute to the child’s support;
• Debts assumed by either parent;
• The net resources of the obligee (the parent receiving child support); or
• The amount of alimony or spousal maintenance paid  or received by a parent.

The court has broad discretion to vary from the amount of child support under Texas statutory guidelines for any reason it finds in the child’s best interest.  As a result, variation from the Texas statutory guidelines is not automatic, although courts are encouraged to consider the totality of circumstances of the child and the parents in reaching a decision concerning the amount of child support in each case.

By:  Cynthia W. Veidt, Attorney

Major Changes to Texas Family Code related to Child Custody and Paternity!!

Effective September 1, 2007, approximately 375 changes were made to the Texas Family Code. Although too numerous to mention at length here, the vast majority relate to the parent-child relationship, including extended visitation schedules, amended child support guidelines, and enforcement/collection procedures related to child support.

Some changes regarding Visitation – the Leg acknowledges the global electronic revolution!

• Conservators can request reasonable periods of “electronic communication” with their child as a supplement to their Possession Schedule. In other words, parents who have difficulty communicating with or visiting their child may want to consider an order allowing them access via Web Camera, Internet Chat, email, or similar methods for a reasonable period of time to facilitate the parent-child relationship.
• The Standard Possession Order now provides for weekend possession throughout the entire year, rather than only during the school year.
• The date to exchange possession during the Christmas or Winter school holiday has changed from Dec. 26th to Dec. 28th.
• Conservators in the military who are deployed for a period of more than six months to a location where access to their child is not reasonably possible (such as Iraq or Afghanistan) can now designate a “proxy” who may exercise that conservator’s possession of a child.

Some changes regarding Paternity/Parentage:

• Sperm or egg donors are legally presumed to be a child’s “parent” unless the donation is made through a licensed physician for use in assisted reproduction.
• Effective January 1, 2008, a man who fails to register with the State’s Paternity Registry may have his alleged parental rights terminated without notice where the child is over one year of age.

The foregoing items are only some of the important changes made under Texas law affecting parents and their children. If you have not reviewed your orders or decrees in the recent past, we recommend that you consult with a family practitioner or seek other legal guidance regarding the possible effect of these statutory changes on your respective rights and duties.

Major Changes to Texas Family Code related to Child Support

Effective September 1, 2007, approximately 375 changes were made to the Texas Family Code. Although too numerous to mention at length here, the vast majority relate to the parent-child relationship, including extended visitation schedules, amended child support guidelines, and enforcement/collection procedures related to child support.

Essentially, all orders (including modifications) or decrees entered after September 1st will incorporate the following regarding Child Support:

• Income withholding for payment of child support is mandatory – no exceptions.
• Severance pay and “lump sum” payments (which arguably include commissions or regularly-scheduled bonuses) are now included in income withholding orders.
• Severance pay and “lump sum” payments (which arguably include commissions or regularly-scheduled bonuses) are now included in income withholding orders.
• The “cap” on the amount of child support awarded under the Statutory Guidelines has been raised, with an automatic adjustment to take place every six years. For example, the “maximum” monthly support (in the absence of extraordinary circumstances) for one child has increased from $1,200 to $1,500.
• In addition to child support under the Statutory Guidelines, “cash medical support” must be paid by the obligor if the obligee provides health insurance coverage for the child.
• Income withholding also governs any award of “cash medical support.”
• Child support for a high school student who is more than 18 years old will terminate if a court finds that the child has failed to meet school attendance requirements. The obligation of support will also end on the date that the child begins active military service.
• Any unpaid child support obligations become due on the date the obligor dies, and the obligation is payable by the obligor’s probate estate (although it can be secured by appropriate life insurance). Actions to enforce payment by the obligor’s estate can be brought in an appropriate family court.
• The deadline to bring an enforcement proceeding for any arrearage is extended to two years after the child support obligation ended.
• All state-issued licenses, as well as motor vehicle registrations, may be suspended and renewal may be denied if the applicant has failed to pay child support for several months. An unpaid arrearage may also prevent an obligor from receiving state grants, state loans or payments on state contracts.

The foregoing items are only some of the important changes made under Texas law affecting parents and their children. If you have not reviewed your orders or decrees in the recent past, we recommend that you consult with a family practitioner or seek other legal guidance regarding the possible effect of these statutory changes on your respective rights and duties.

FAQ regarding Divorce # 14: How much will I have to pay in Child Support?

This usually depends upon three things: (1) the number of children involved in the Divorce, (2) whether there are any children “outside of the marriage,” and (3) how much you (as the “Non-custodial Parent,” or NCP) earns. The general percentages applied to your “Net Resources” (but not your current spouse’s Net Resources) are as follows:

One Child 20%
Two Children 25%
Three Children 30%
Four Children 35%
Five Children 40%
Six + Children Not less than Amount for Five Children

The percentages are slightly less if you have other children that are “outside of the marriage,” in other words you pay a little less (but not much) if you have children from a prior relationship for whom you also have a “legal duty of support.” If you are paying child support regarding other children, or if you support other children who reside with you, then you would pay a slightly lower percentage of your Net Resources than under the preceding guidelines.

“Net Resources” does not mean “net income,” however. It is not calculated based upon what you actually receive in your paycheck, because you can change this yourself (i.e. – take out more for a 401k contribution, etc.). The Court will calculate this fictional “Net Resources” by subtracting out what a single person taking the standard deduction and one personal exemption would pay in taxes (Social Security and FICA). You can find these amounts in the Attorney General’s Child Support Tax Tables, which is located on their website. The Court will also subtract any amounts actually paid by you for health insurance for the benefit of the Child, but not the portion of your health insurance deduction that applies to your own coverage. The Court will also deduct any union dues that you must pay.

Also, you need to be aware that the Court will consider any other sources of income that you are entitled to receive, including commissions, overtime pay, bonuses, interest on savings, dividends, capital gains, royalty income, net rental income, annuities, pensions, severance pay, retirement benefits, disability or workers’ compensation benefits, social security benefits, and similar sources of revenue. Persons who are self-employed should be aware that the Court will not merely look to your “salary,” if any, but may consider any benefits allocated to you from your business or undertaking, after taking into consideration the ordinary and necessary expenses required to produce such income.

There is a “cap” on the amount of Net Resources to which the foregoing percentage guidelines can be applied. That amount, for cases filed after September 1, 2007 (but before the next cost of living adjustment in 2013) is $7,500 per month. This is the maximum amount of Net Resources that the Court will usually consider for purposes of calculating your child support obligation, even if your actual Net Resources are greater. For example, a person with Net Resources of more than $9,000 per month with one child would generally pay child support in the amount of $1,500 each month, calculated as follows: $7,500 times 20% = $1,500.

Sometimes, the Court will award more or less than the amount calculated under the statutory guidelines, but only in compelling circumstances (this is referred to as a “Variance”). As the name “Guideline” implies, this is the amount that will guide the Court – and the amount you usually will pay.

FAQ regarding Divorce # 10: What exactly is a Divorce Decree?

We usually ask you to consider the Divorce Decree in terms of being a “Rule Book” for all of the various things that could or might happen after the Divorce is granted. The actual granting of the Divorce is nothing more than the Judge declaring that the marriage is dissolved for either “grounds” or on the “no fault” ground of insupportablility. Insupportability just means that there are so-called “irreconcilable differences” -- referred to in Texas as a “discord or conflict of personalities that destroys the legitimate ends of the marriage relationship,” provided further that “there is no reasonable expectation of reconciliation.”

The rest of the Decree (as well as other pleadings referred to as Temporary Orders or Final Orders) provides guidelines and rules for dealing with any children (such as custody or “conservatorship,” the powers of conservatorship, visitation, child support, medical support, and health insurance coverage), property (such as assets and debts), and various other issues such as any change of name, taxes, and similar matters.