Articles Posted in Retroactive Child Support

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.

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.