Child Support: How is it calculated, modified and enforced?
by Rob McEwan
Raising children is expensive, trust me. I have two and they’re always needing food, shelter and clothes…ugh. But, they’re worth every penny.
In Texas, the State Legislature has promulgated a formula for calculating child support. This formula is called the “guidelines.” If you find yourself in litigation and you hear that phrase, you need to ask a few questions to ensure that the child support is being calculated properly.
Child support can be and is usually ordered in all cases when children are involved. Usually this happens in a suit for divorce. When the parents are not married this is called a Suit Affecting the Parent-Child Relationship (SAPCR). If paternity has yet been established, it can also be called a Suit to Adjudicate Parentage. Either way, when child support is at issue, one parent is usually ordered to pay guideline child support. The first factor in the formula is: What is the obligor’s ability to earn gross income per month? A court can take many things into consideration when determining the obligor’s ability. For example, many people have second jobs (side-hustle). If an obligor is a school teacher and also drives for UBER, all of that person’s income will be averaged to determine their gross monthly income. If a salesperson has a base salary and commission/bonus structure, all of it will be averaged. When the Court determines gross income, standard taxes are taken out. For W-2 employees, this can be very simple. For a 1099 worker, this can be complex. Not all federal tax exemptions will be deducted when calculating the gross monthly income, i.e. cell phones. A Court can impute certain expenses as income. Another determination is whether an obligor is working to their potential. When faced with the idea of child support, many obligors threaten to stop working. In that event, the Court will do its best to make an educated guess about that person’s ability to earn income. At minimum, the Court will use Texas minimum wage guidelines. There have been many people who have chosen to under-employ or un-employ themselves, only to then see their child support obligation balloon out of control. It’s not a good idea.
After the Court determines the obligor’s gross monthly income and taxes, the Court then deducts for other things like any State income tax, union dues, health and dental insurance costs for the kids, and other permissible statutory factors. Other factors include, but are not limited to, travel costs to exercise visitation, special needs of the kids, the income of the obligee, etc. Most cases do not involve any adjustments besides the health and dental insurance costs for the kids.
Finally, the Court has calculated the obligor’s “net income,” per the Texas Family Code. The Court will then multiply the net by a percentage, which is determined by how many children the obligor has and how many of those children are in the active case. If an obligor only has one child, then the percentage is 20%. If an obligor has one child in the case and another child with someone else, the percentage reduces to 17.5%. If you want to make life very expensive, have children with multiple partners.
During this pandemic, many people have become unemployed. If there is a material and substantial change in the circumstances of either parent or the child, like a drop in income, an obligor may be entitled to a reduction in their child support obligation. To secure a reduction, the obligor must file a Petition to Modify the Parent-Child Relationship and proceed to a hearing. Until then, the child support remains unmodified. For example, if an obligor is paying $1,000 per month and they lose their job in March but don’t file until July, the obligor will still owe $1,000 per month for March, April, May and June. Therefore, when you think there is a material change, contact an attorney immediately.
Lastly, it is a very bad idea to not pay a child support obligation. Failure to do so carries several harsh penalties, primarily jail. Courts do not like putting people in jail for child support. Every case is different but the general purpose of jail is to motivate the obligor to pay their child support. Child support is not a debt to the other parent, rather it’s a duty to the child. We have no greater duty than to our children. When a Court makes any ruling regarding a child they do so with the “best interest of the child” at heart. While we all may have differing opinions as to what is in your child’s best interest, the one that matters at the end of the day is the Court’s. Hopefully you and your co-parent can work together to calculate child support in the best interest of the child. When in doubt, talk to an attorney familiar with calculating, modifying and enforcing child support.