Texas law provides a mathematical formula to calculate the amount a non-custodial parent will owe in child support.
The non-custodial parent will be obligated to pay 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. Upon application 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; and
- 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 non-custodial parent’s income. The percentage varies depending on the number of children for whom the child support is ordered and the number of other children that parent is supporting, such as children from a previous marriage. Net income includes the following:
- 100% of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
- interest, 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); and
- 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:
- a 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 income or 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; and
- 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 quite complicated. The attorneys at Kevin J. Schmid and Associates are highly experienced at discovering income sources and in calculating child support. If your income varies over time, the courts may take your average income over a period such as your average income over six months to three years. 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 less than $7,500, Texas law has established the following guidelines for child support payments. The amount withheld is based on the net income each month.
- 20% for one child
- 25% for two children
- 30% for three children
- 35% for four children
- 40% for five children
- Not less than 40 % for six children
Special rules apply in cases of split or joint placement or multiple children in different households. If a court believes an individual is not earning within expectations, the child support amount may be based on earning potential. If a non-custodial parent’s net monthly income exceeds $7,500, there are special legal considerations to present to the court.
In the event there are other children you are obligated to support either by other court orders or paternity, you can receive a small deduction in the percentages above. For instance, if you support one additional child under another court order, child support for one child will be 17.5% of the net resources rather than 20% and for two, 22.5% rather than 25%. When setting or modifying support, the court will subtract the benefits made to or for the child because of the disability from the amount ordinarily owed for child support. There may be no additional child support beyond what the child receives from Social Security.
If you lose your job, make less money than you used to, or become physically disabled and unable to earn an income, you should retain counsel immediately. 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. A court order is required. Many non-custodial parents believe that if they get behind at a time when they are legitimately unable to make a child support payment, that the amount owed can later be reduced or discounted by the court when an explanation is given. However, if you wait to explain your changed circumstances, the court will be unable to reduce the back payments you owe. It is very important that you immediately retain counsel, provide proof of the reduction in income, and ask that the payments be reduced accordingly.
In order to change your child support, the following mst be shown:
- 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; or
- it has been three years since the order was rendered or last modified AND the new child support amount would be at least 20% or $100 per month less than the old child support amount.
The court may also order you to seek employment or participate in an employment-training program, such as those offered by the Texas Workforce Commission.
The new spouse’s income cannot be used to calculate higher child support. Likewise, your new obligations to the new spouse or step-children cannot be considered to lower your child support obligation. Due to the complexity of issues involving children, be it child support, visitation, 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.