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Child Support
Child Custody issues are very difficult not just on the parents, but on the children as well. One or both parents may use the children as a “tool” to hurt the other parent, but it really hurts the children. Parents need to remember that the Court does not care about the feelings of the parent, but rather the best interest of the child. In many situations, it is in the best interest of the child to have BOTH parents involved in their life.
Child Support in Texas
One of the areas that family law covers is child support. Child support can be a stand-alone issue, or it can be combined with custody issues or divorce. When parents divorce, child custody and child support are addressed within the divorce proceeding and are set out in the Final Decree of Divorce.
What happens if the parents were not married? In order to establish child support in Texas by Court Order, you must file a suit affecting the parent-child relationship, or SAPCR for short.
Suit Affecting Parent-Child Relationship
One way to establish child support is to apply for services through the Office of Attorney General of Texas (“OAG”). A parent can apply for free through the website or by requesting the application. If the application is approved, the OAG will file a SAPCR and serve both parents. It is important to note that the OAG does not represent either parent, but rather the State of Texas as a third party. For this reason, it may still be necessary to hire an attorney to represent you. Although applying for services is free, one of the drawbacks is the length of time it takes to receive services. For more information about the OAG child support services, you can visit their website directly.
Private Attorney
Another option to establish child support is to hire an attorney to file the SAPCR. The advantage to hiring an attorney over applying for services through the OAG is timing. It will be much faster hiring an attorney to file the original petition to establish child support than it is to apply through the OAG.
Pro Se
Finally, a parent can always file a SAPCR as Pro Se and represent themselves. For more information on how to represent yourself, visit TexasLawHelp.org. There you will find forms and instructions. Although it is possible to represent yourself in a SAPCR, there is no substitute for sound legal advice from an attorney.
Child Support Calculations
Once a petition is filed, child support must be calculated based on the Texas guidelines. While there may be some situations where guideline support is not appropriate, the majority of cases will be based on the following:
Wages
Number of Children in Suit
Total Number of Children
Other Deductions
The easiest way to calculate support is to use a child support calculator, which can be found online. I typically use the Texas OAG calculator. A person’s average gross wages are used for the calculations, which can be based on hourly or salary, or, for the self-employed, your gross income prior to any expense deductions. Average annual gross income is usually calculated using the last 3 years of tax returns or, if not available, then average monthly gross income can be used by using pay stubs.
When looking at the number of children, we look at those in the suit, as well as any other children the “paying” parent has not part of the suit. In other words, does the non-custodial parent have any other children, regardless of whether he or she is currently paying child support? Those children will factor into how child support is calculated.
Finally, there are some deductions that will lower the child support calculation, such as whether the non-custodial parent is covering health insurance costs. There are other deductions as well, but the main deduction is the health insurance premiums.
As a general rule of thumb for a quick estimate, you can figure about 20% of the monthly income will go toward child support for one child, 25% for two, and 30% for three. This is not accurate but can be helpful in getting a rough basis.
Modifications
What happens when a person changes jobs, gets a raise, or is no longer working? Child support can be modified depending on the circumstances. In some instances, the OAG will do a child support review in 3 years to determine if child support needs to change. Other times it may be necessary to hire an attorney to file a modification.
Child support can be modified by either parent when the support will change by $100.00 a month or a minimum of 20%. That doesn’t mean the modification will be approved, however.
When a parent receiving support files a modification, it is typically due to the non-custodial parent making more money. A petition to modify can be filed to bring the case before the Court. In these situations, the OAG is typically a party to the suit and notice must be given to the non-custodial parent and the OAG. The support is then calculated and, if the difference is more than $100 or 20%, then the change is approved.
Sometimes the modification is brought by the non-custodial parent who is paying child support. The typical case is when they are making less money than before, or if they have had additional children born to them. In many instances, the child support will be lowered based on the specific facts or circumstances.
Will child support always be lowered if a modification is filed? The short answer is no. It is possible for the Court to determine the non-custodial parent is intentionally underemployed or unemployed. There are parents that will quit their job or take a significantly lower paying job in order to avoid paying child support. The parties must present proper evidence of employment/unemployment and must show that diligent effort has been made to obtain employment. There are many factors that the parties can use to prove or disprove intentional unemployment or underemployment. Some factors to be considered are the educational background and work history of the non-custodial parent, length of time between the order to pay child support and the job change, efforts made to obtain employment, communications between the parties, and many others.
If you are facing the possibility of a modification for child support, make sure you speak with an attorney about your options and how to support or defend the modification depending on your specific circumstances.
