Articles Posted in Child Support

Are you facing a divorce with your spouse and you are concerned that you are not the father of your child?  You have probably always had that feeling (given your spouse’s cheating history) that you are not the child’s biological father but you just have never acted on that feeling.  However, now that you are facing a divorce you feel that it is important to raise this as an issue and deny your paternity.  Absent addressing all of the issues that can arise with a denial of paternity, you need to know what can happen in the interim while the case is pending.  You may not be the biological father, but you still may be the presumed father.

What is a presumed father?

You are the presumed father for all legal purposes if one of the following is true: you are married to the mother and the child was born during the marriage; you married the mother before the birth of the child even if the marriage could be invalid; you married the mother before the birth of the child and your name is on the birth certificate.  This means, even if you are not the biological father of the child you are the father in the eyes of the law.  Therefore, the judge can make orders according to that legal fact and most likely will do so.

You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established.  However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then?  Most people say that you can “save the child support” but that is not ideal.  Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school.  Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.”  In the Interest of W.R.B. and B.K.B., Children.  So, what are your options to ensure that your children can get a college education and have support from the other parent?

This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5th District Court of Appeals in Dallas.     There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a).  Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments.  In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing.  In the agreed modification orders, the parties had done just that.  Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support.  However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.

The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code.  Rather, the proper avenue is breach of contract.  This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority.   This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.

​Whether you are just now to the realization that you will have to pay child support or whether you have just been ordered, the sinking feeling may be setting in as to the fact that you will be paying this monthly amount for quite some time. The real question is, however, when does your child support obligation end? What if your child moves in with you, what if your child moves out entirely, what if your child gets married before they graduate high school? All questions to be considered when paying monthly child support.

Understand that if nothing out of the ordinary occurs and your child continues to live with the parent receiving the child support, you have a statutory obligation to continue paying your child support. More than likely, you were ordered to pay a certain amount in child support each month due on the first day of each month and every month thereafter. You may have a court order that states the following:

“and a like payment being due and payable on the first day of each month thereafter until the first month following the date of the earliest occurrence of one of the events specified below:

You are a parent who has primary possession of the children and you need financial assistance from the other parent but they are not willing to help out by agreement alone. You realize you are going to have to take additional measures to get anything out of them; more specifically, you visit with an attorney and understand that it is going to take a court order.

Regardless of whether your case is a divorce or suit affecting the parent-child relationship, you will need to include a request for child support within your pleadings. This ensures that you have noticed the other parent that you are seeking this in court and it ensures that you can bring this issue up at the hearing. If your case is just beginning, this issue would be addressed at a temporary orders hearing. You and your attorney will put on evidence of the monthly net resources of the other party. How do you do that if you do not know what the other party is making? Your attorney at Guest & Gray will ensure that the party is noticed and ordered to appear with their financial records so that the judge and/or your attorney can calculate the correct amount of child support. However, if the other party ignores the court order and does not bring their financial records, typically the judge will be agitated with this and start asking the party questions on the stand about their financial information.

Once the monthly net is determined, child support is calculated based upon a percentage amount determined by the number of children involved in the suit as well as other factors. For instance, if you have one child child support would be 20% of the obligor parent’s monthly net resources. If the obligor parent has one other child that they are responsible for (remarries or has another child with another person) lowers the percentage down to 17.5% and then gets lower depending upon the number of additional children outside of your case.

Many people avoid getting divorces because they cannot afford to do so.  They know that they depend upon the other spouse’s income in order to continue paying the bills.  You are not alone in wondering how you will be able to afford everything during and after your divorce.  You know you cannot stay married and you know you need financial assistance at least with some of the bills.

Fortunately, Texas does allow for temporary spousal support while your divorce case is pending.  During initial consults with clients, the question always arises on income, who is going to stay in the marital residence, and if financial assistance is needed.  If it is, then clients will complete a financial information sheet for temporary orders hearing purposes which will be filed.  This allows the judge to see your income and expenses, your spouse’s income and expenses, and any expenses associated with the child.  It is basically a breakdown of your household monthly income and expenses so that the judge can determine whether or not you truly have a need and if your spouse has enough income to make up for the deficit.  In most cases, and especially if the spouse has already been doing so, the court will order the spouse to continue paying the bills that they have already been paying after separation and prior to the court date.  For instance, if your spouse has already moved out of the home but they have continued to pay the mortgage after moving out, then we would ask the court to maintain that status quo while the case is pending.

Additionally, if you have a child and you are awarded the exclusive right to designate the primary residence of the child then the other parent will most likely be paying child support.  This is additional assistance for you. If it is only one child, it would be 20% of the other parent’s monthly net resources.  The percentage goes up with the number of children.

You have a final family order, whether it is an order in suit affecting the parent-child relationship, final decree of divorce, etc., and you would like it modified.  You are either the parent receiving child support and you want the amount increased or you are the parent paying child support and you want it decreased.  Or, there has been a change that would require the conservatorship or visitation modified.  It is not an uncommon question and the Texas Family Code does specify particular deadlines and requirements with respect to filing a modification.

For child support, Texas Family Code Section 156.401 states that final orders can be modified if either (a) there has been a material and substantial change in circumstances for a party or the child after the order was entered; or (b) it has been three years since the order was last entered or modified AND the monthly amount either differs by 20% or $100 from the amount that it should be under the child support guidelines.  So, it has been less than three years but something has happened that would require a change in child support then you can seek a modification.  For instance, did the parent paying child support get a new job after your orders were rendered and they are now making more money?  Or, did the obligor lose their job and they are no longer making any money?  Additional instances of material and substantial change in circumstances would also be (a) the obligor parent had another child that they are financially responsible for; (b) health insurance has changed (lost or new premiums); or (c) the children are now living with the obligor parent or another person.

That brings us to modifying orders as to conservatorship and/or possession or access.   If you are seeking to modify the parent who has the exclusive right to designate the primary residence of the child in less than one year from the orders being rendered, Texas Family Code Section 156.102 governs.  If you do so, you must attach an affidavit to your pleadings and the affidavit must allege specific facts that the child’s present environment may endanger the child’s physical health or significantly impair their emotional development.  Not only must these allegations be made, but you also have to prove this.  If you do not have this, you will have to wait more than one year to change who has the exclusive right to designate the child’s primary residence.  If you are modifying in more than a year, your burden is a material and substantial change in circumstances of a party or the child AND it must be in the best interest of the child.  In fact, best interest of the child is the ultimate burden in every family law case.

You are a father who wants to be a good dad and support his child without breaking the bank and not being able to support yourself.  You do need financial resources in order to do this and you will probably pay guideline support. Our firm can help you.

How Much Will I Pay in Child Support?

          Some fathers fall into the trap of paying above-guideline child support.  That is, they agree to pay more than they are required either in amount of child support or they pay support and in addition to that pay for extracurricular, daycare, etc.  Texas Family Code 154.125 provides the chart on child support guidelines and it is as follows:

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

1 child           20% of Obligor’s Net Resources

2 children        25% of Obligor’s Net Resources

3 children            30% of Obligor’s Net Resources

4 children            35% of Obligor’s Net Resources

5 children            40% of Obligor’s Net Resources

6+ children           Not less than the amount for 5 children

If you have additional children besides the one involved in the suit, that is important because the percentages go down as shown below:

1

2

3

4

5

6

7

Number of

0

20.00

25.00

30.00

35.00

40.00

40.00

40.00

other

1

17.50

22.50

27.38

32.20

37.33

37.71

38.00

children for

2

16.00

20.63

25.20

30.33

35.43

36.00

36.44

whom the

3

14.75

19.00

24.00

29.00

34.00

34.67

35.20

obligor

4

13.60

18.33

23.14

28.00

32.89

33.60

34.18

has a

5

13.33

17.86

22.50

27.22

32.00

32.73

33.33

duty of

6

13.14

17.50

22.00

26.60

31.27

32.00

32.62

support

7

13.00

17.22

21.60

26.09

30.67

31.38

32.00

The cap for child support was recently increased on September 1, 2013 from $7500 to $8550.  This is the new child support cap for application of the percentages to monthly net resources.  Therefore, this is not an increase completely; it only applies to those who have a gross monthly income of approximately between $10,000 and $11,000.00.

Presumably, the application of the child support guidelines to one’s monthly net income is considered to be in the best interest of the child.  However, Texas Family Code Section 154.123 states that “the court may order periodic child support payments in the amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.”  The problem is, most often this section is used to try and prove that a father should pay above-guideline child support.  But, it could still be used to decrease your child support below-guideline child support if, for instance, you are the parent paying all of the travel expenses for possession of or access to the child, if you are paying the child care expenses, etc.  Either way, if the court deviates from the child support guidelines, the judge must issue findings of fact and conclusions of law that supports the court’s decision.

It is important that you discuss all payments for the child that are you make monthly, that the other parent makes monthly, and you need to be able to prove that at least your payments are made.  For example, carbon copies of checks, bank statements, etc.  Too often we have clients who have made cash payments to the other parent and the other parent will not acknowledge those cash payments and there is no way to prove that in court.

How Long Will I Pay Child Support?

          Texas Family Code Section 154.001 provides the requirements of how long one must pay child support.  Generally, most fathers pay child support until the child emancipates which means they turn 18 or graduate high school, whichever occurs later.  Therefore, if your child is 18 but still enrolled in high school, then you can be ordered to continue paying support until graduation month.  However, if you have a child who is disabled, you could potentially pay support for as long as that disability persists.

What about Retroactive Child Support?

          It is not uncommon that we see cases where the parent seeking support is also asking for retroactive child support.  This means that you are not only going to pay child support but you are also going to have an additional lump sum amount that you will be paying on.  Retroactive child support is awarded when you have a case where the child is a little bit older and paternity has never been established.  It can also apply if you have final orders, marry or remarry the mother of the child, and then subsequently separate. The same guidelines apply as when calculating regular support so they would take 20% of your monthly net and calculate that back as far as 4 years.  Sometimes, considering factors within the Texas Family Code, the court can order you to pay back to birth.  With an older child, you can understand how problematic and expensive that can become.

What is Cash Medical Support?

          If private health insurance is not available to either parent for the child, then the obligor parent shall be required to pay cash medical support.  Reason being, the child will be enrolled on a government assistance medical program such as Medicaid.  Therefore, the Texas Attorney General’s office then develops an interest in your case because it then becomes an issue of money owed to the government for the assistance the child is receiving.  Texas Family Code Section 154.182 provides guidance as to amount and states that in addition to the guideline child support, this amount “is not to exceed” 9% of your annual resources.  The orders will state that you are paying this amount “as additional child support” but that amount will be withheld by the Attorney General’s office when you pay your monthly child support.

The orders will also state that you can cease paying cash medical support if you do a series of options, including if you obtain private health insurance for the child.  A word of caution: if you do obtain private health insurance after final orders have been rendered ordering your cash medical support, it is highly suggested that you do not cease paying the cash medical.  Rather, you need to notify the Attorney General’s office of the private health insurance and request a review meeting.

If private health insurance is available to the parent not ordered to pay child support, most likely you will be ordered to pay child support in addition to cash medical support which will be the amount of the health insurance premium on the child.

It is important that if you have private health insurance available through your employment that you provide said insurance for the child.  Many fathers are concerned that their employer will wait until open enrollment to allow coverage for your child.  However, if you obtain a court order and that order is sent to your employer, your employer must enroll the child by the date that you were ordered to provide the health insurance.  Therefore, you could avoid payment of any cash medical payment altogether.  Also, another added bonus, in calculating your monthly child support obligation, payment of a health insurance premium is taken into consideration.

What Should You Do?

I have helped many clients with this issue and I can help you as well.  Whether you are dealing with a case in which your child support is being established for the first time (with a young or older child) or a modification in which your child support is being increased, we are here to guide you throughout the process.  Guest & Gray has the family law experience that you need.  We have offices in Forney, Rockwall, and Kaufman.  Call us today to schedule your appointment.

 

 

New 2013 Texas Family Laws

 At Guest and Gray our Forney and Rockwall Family team works to keep our clients informed on changes in the Family Code. Recently, the legislature passed many new laws that affects Texas families. Our family attorney can help you understand how these laws will affect your case, and we offer confidential consultation for all family law cases. Call us today so we can help you.

Miscellaneous Changes

If there is an allegation that either you or the other parent is abusing an illegal controlled substance, then a drug test can be requested. Typically, the testing will occur with Forensic DNA & Drug Testing facility in Dallas and if requested by either party, then the court will order both parties to participate and pay for their respective drug tests. However, sometimes, the court will only order the one party accused of using an illegal substance to take the drug test and order that the requesting party pay for the drug test with the caveat that if the testing party has a positive result, then they must reimburse the requesting party the drug testing fee.

If you fail a drug test, or if the other party fails a drug test, there are consequences in a child custody case. The court could order that the failing party have little to no visitation with the child and if any visitation, then it will be supervised. Sometimes, the judges will ask if there is a family member who could do the supervision of the visits with the child. If there are not, then the extreme form of supervised visits is either Family Court Services if in Dallas County or other court-approved supervision facility. Also, if there is a history of abuse of an illegal controlled substance, then the court could order that you participate in a rehabilitation program before the failing party has any access to the child. In fact, there could be several steps that the court puts in place for the failing party to complete before they have any visitation with the child. Again, most courts will order supervised visitation with the child but it could be very limited to a number of hours per month.

Courts have also started putting injunctions in place to the effect that a party is to not consume an illegal controlled substance within a certain period of time (example 72 hours) before possession or access to the child begins. This is also something that can be requested by either party. Additionally, in final orders, it can be ordered that you submit to random drug testing at any time in the future if requested by the other party and they pay the testing fee.

Congratulations, you have made it to mediation stage in your family law case. For many, this is the step to final orders in your case. That is, if you have a successful mediation. There are a few things that you and your attorney can do to ensure this is the case for you.

(1) Many mediators send out a mediation packet to the attorneys/parties once the mediation is scheduled. This mediation packet should be taken seriously and completed to your utmost ability. It gives the mediator information about you, the other party, and the issues at hand as well as your stance on those issues. Some mediators go into more depth than others. The more that is addressed right off the bat, the better.

(2) If your case is a divorce with property issues, make sure you have at least a sworn inventory and appraisement from both sides so that you can make sure all of the property is addressed. To be more organized, you could make a spreadsheet of assets and debts, with a column for the ones you would like and the ones you would like for your spouse to have, as well as a column to check off whether or not the asset/debt is addressed in the mediation settlement agreement.