Calculating Child Support — How Do Texas Courts Decide?
How much child support will you have to pay or receive is a common question we get. In general, Texas law provides a mathematical formula to calculate the amount a noncustodial parent will owe in child support. The noncustodial parent pays child support until the child is 18 years old or graduates from high school, whichever is later. If the child turns 18, the child must continue to be enrolled in school and comply with minimum attendance requirements imposed by that school. The child support obligation will also end if the child is emancipated by marriage or by a court order. The child support obligation may also continue indefinitely if the child is disabled. A child is considered disabled for child support purposes if:
- The child requires substantial care and supervision because of a mental or physical disability and is not capable of self-support.
- The disability exists, or the cause of the disability is known to exist, on or before the child’s 18th birthday.
Child support is a percentage of the net income of the noncustodial parent. The percentage varies depending on the number of children for whom the child support is ordered and the number of other children whom the parent is supporting such as children from a previous marriage.
Net income includes the following:
- 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips and bonuses)
- Interests, dividends and royalty income
- Self-employment income
- Net rental income (defined as rent after deducting operating expenses and mortgage payments, but NOT including non cash items such as depreciation)
- 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
Net income does NOT include return of principal or capital; accounts receivable; benefits paid in accordance with aid for families with dependent children (welfare payments); or income from a new spouse.
The following items are deducted from the non-custodial parent’s resources prior to calculating 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 health insurance coverage for the child for whom child support is paid
What constitutes income and what deductions are allowed for self-employed persons can get complicated. Consult an attorney to discuss specific circumstances in calculating child support.
If the person paying child support has income that varies over time, courts may take an average income over a period, for example six months or one to two years.
One very useful tool for calculating child support in Texas can be found at the following link to the Texas Attorney General’s website: Child Support Calculator
How does a court decide the child support amount?
Texas has established a formula to calculate what amount a non-custodial parent should pay for child support. If a non-custodial parent’s net monthly income is $8,550 or less, Texas law has established the following guidelines for child support payments. The amount withheld is based on the net income each month.
- 20 percent for one child
- 25 percent for two children
- 30 percent for three children
- 35 percent for four children
- 40 percent for five children
- Not less than 40 percent for six children
Special rules apply in cases of split or joint placement or multiple children in different households. Also, if a court believes the non-custodial parent is not earning within expectations, the child support amount may be based on earning potential. This is sometimes referred to as intentional underemployment or intentional unemployment.
In the event there are other children, whom the paying party is obligated to support either by other court orders or because they live in the same home, the paying party can receive a small deduction in the above percentages. For instance, if they support one additional child under another court order, child support will be 17.5 percent of the net resources rather than 20 percent.
What if I lose my job or I am unable to pay child support?
If you lose your job, make less money than you used to, or become physically disabled and unable to earn an income, you should notify the court immediately. However, simply telling the court clerk or the Child Support Division of the Office of the Attorney General is not enough to reduce the amount of child support you owe. You must obtain an order from the court. Some non-custodial parents believe that if they get behind at a time when they are legitimately unable to make their child support payment, the amount owed can later be reduced or discounted by the court. However, if you wait to explain your changed circumstances, the court will likely be unable to reduce the back payments you owe. It is very important that you immediately seek a court order modifying the child support amount. If you do this, the court may temporarily or permanently reduce the amount of future payments.
In order to change the monthly child support amount, you must show the court that:
- The circumstances of the child or a person affected by the order (such as yourself), have materially and substantially changed since the prior order was rendered.
- It has been three years since the order was rendered or last modified AND the new child support amount would be at least 20 percent or $100 per month different than the old child support amount.
What if extra child support was paid voluntarily but you can no longer continue to do so?
The Texas Family Code states, “a history of support voluntarily provided in excess of the court order does not constitute cause to increase the amount of an existing child support order.”
How does remarriage affect child support?
The new spouse’s income cannot be used to calculate higher child support. Likewise, new obligations to a new spouse or step-children cannot be considered to lower a paying party’s child support obligation.
What happens if the other parent decides to let the child live with the paying party?
You are still under a court order to pay the child support until you have a new court order. You should go back to court and have the orders changed.
What are the steps for getting a judge to change the child support?
A Petition for Modification must be filed in the court of “continuing jurisdiction.” You must file in this court even if both parents no longer live in that county. There are ways to have the case transferred to another county. In the Petition you may request that the court schedule a hearing to decide whether child support should be changed.
You must have a copy of the Petition for Modification served on the other parent, along with notice of the hearing date set by the court.
A paying party can present evidence at the hearing about their new income such as recent pay stubs or unemployment check stubs, or other documentation to show that the income has materially and substantially changed. If a party represents themselves, they will be expected to know all the rules of procedure and evidence. The judge will not give legal advice such as how to get pay stubs admitted into evidence.
Due to the complexity of issues involving children, be it child support, custody or otherwise, consider seeking the assistance of an attorney. It is much less expensive to prevent a problem than it will be to repair the damage after the problem arises. Additionally, even if you are able to get the judge to sign the orders you prepared on your own, it may be unenforceable if certain language is not included.
2013 Changes To Child Support
Starting Sept. 1, 2013, new child support guidelines became effective in Texas. Under the law prior to Sept. 1, a payer’s child support obligation was based on his or her income up to the first $7,500 per month in net monthly resources. After Sept. 1, child support will be calculated using the first $8,550 in net monthly resources.
New and modified court orders entered after Sept. 1 will use the new “cap,” and administrative reviews by the Office of the Attorney General will be based on the revised presumptive maximum of $8,550.
The maximum guideline child support are now as follows: For one child: $1,710 ($8,550 x 20 percent); For two children: $2,137.50 ($8,550 x 25 percent); For three children: $2,565 ($8,550 x 30 percent).
If the payer’s income is less than the presumptive maximum, then the guideline percentages apply to the actual monthly net resources. The Family Code allows courts to deviate above the maximum, or “cap,” but only in specific circumstances.
And remember, either parent may request a review of the child support order every three years, by contacting the Child Support Division of the Office of the Attorney General. You do not need an attorney if you proceed this way.
As your life and your child’s life changes and grows, you may find yourself in need of modifications. If your former spouse is not upholding his or her end of the agreement, support enforcement may be necessary. In either case, we are prepared to help you obtain the best outcome possible.