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How is Child Support Payment Determined?


The Court can deviate from the Guidelines, but this is a rare occurrence because the Court values simplicity and fairness. Moreover, the Texas child support guidelines are presumed to be in the best interest of the child. The best interest of the child presumption is rebuttable and the guidelines can deviate from when other factors are considered. What other factors can a Court consider when deviating from child support guidelines? We will discuss the factors in detail below.

An Example In Real Life

Sometimes life can throw some unexpected curve balls our way. This is sometimes the case for those parents who have been ordered to pay child support in Texas. For example, let’s say that a couple, Zhan and Julie Pagiuo have been married for about twenty years. The couple has two children in their twelfth year of marriage. Their children are twins, one is a boy and another is a girl. For the past year and a half, the couple has argued about various things.

The main argument is centered around their finances. Three months ago, they decided that they were going to get a divorce. Both Zhan and Julie work. However, Zhan is the breadwinner. They’ve agreed that Julie will have primary custody and control over the children. [1] On temporary orders, Zhan is ordered to pay child support.

However, right before the order is signed, Zhan loses his job. What should he do? He is no longer working and the child support amount listed in the order is based on of his previous salary that was set using the Texas Family Code Child Support Guidelines.

He would like to get the child support amount lowered. Can he? The general answer is yes. In some instances, the Court may deviate from the support guidelines. Below, we will discuss in detail how child support is typically calculated and the factors that a Court can use to determine child support.

Will The Court Consider Other Factors When Determining Child Support?

The general answer is yes. Although child support is typically set based on the guidelines enumerated in the Texas Family Code, under some circumstances, A Texas Court may consider additional factors when determining the amount of child support that an obligor parent will be ordered to pay. Additionally, usually parties, on their own, may agree to deviate from the child support guidelines. The child support guidelines enumerated in the Texas Family Code are more often used because they are presumed to be in the best interest of the child.

So what are some additional factors that a Texas Court may consider when determining the amount of child support that an obligor parent will be ordered to pay? According to the Texas Family Code Section 154.122(b)- 154.123 a Court must find that the child support guidelines listed in the Texas Family Code would be unjust or inappropriate under the circumstances presented before it in order to deviate from the guidelines. Some factors that a court may consider in order to deviate from the child support guidelines are as follows:

  1. The age and needs of child; or
  2. The ability of the parents to contribute to the support of the child; or
  3. Any financial resources available for the support of the child; or
  4. The amount of time and possession that obligor parent has of the child; or
  5. The amount of the obligor’s net resources (intentional underemployment); or
  6. The amount of child care expenses; or
  7. The amount of care for any other children; or
  8. The amount of alimony or spousal maintenance being paid/received by either party; or
  9. Any expenses for college education; or
  10. Any non-cash compensation from work (car, housing, etc.); or
  11. Any wage deductions; or
  12. Any health insurance and uninsured medicals; or
  13. Any special needs of the child; or
  14. Any cost of travel to exercise possession; or
  15. Any positive or negative cash flow from property; or
  16. Any debts assumed by either party; or
  17. Any other reason that deviating from the child support guidelines would be or is in the best interest of the child.[2]

Let’s discuss each of these 17 factors in much more detail.

1. The Age And Needs Of Child

So what does it mean when we say that a Texas Court can deviate from child support guidelines based on the age and needs of a child? Generally, it means exactly what it says. Say for instance that there are two children at the center of a child support order and one of the parties, presumptively the obligor parent would like to deviate from the child support guidelines. In our example above, Julie and Zhan have twins, so in all likelihood, the needs of the twins would be the same. Julie and Zhan’s twins are no longer babies, therefore they do not need diapers and formula.

However, they may need a tutor for mathematics or enrollment in after-school care to coincide with Zhan and Julie’s work schedules. The concept of the age and needs of a child go hand and hand. Generally speaking, a younger child will not have the same needs that an older, school-aged child will have.

2.The Ability Of The Parents To Contribute To The Support Of The Child

Moving on, let’s discuss factor number two briefly, “The ability of the parents to contribute to the support of the child.” This is a factor that most people can relate to. This factor concerns the income of both parents. So what happens if an obligor parent can’t work or stops working, once child support has been ordered?

As with our couple listed above, in a 1998 landmark case, a Texas Court held that although an obligor parent was not working at the time the child support order was rendered, the obligor’s lack of income was not a sufficient factor to deviate from the child support guidelines. [3]

In arriving at their decision, the Court reasoned that although the obligor parent may not presently be able to make the child support payments as mandated in the Texas Family Code guidelines, the obligor’s financial condition may improve in the future.

3. Any Financial Resources Available For The Support Of The Child

What are other forms of financial resources that are available to support a child? Some common examples of additional financial resources to support a child include a trust or government benefits. What is considered to be a government benefit? A government benefit is a payment or subsidy issued by a form of government. In our context, this could mean Children’s Health Insurance Program (CHIP) or Supplemental Security Income Benefits.

A Texas Court recently decided that an obligor parents amount of child support should be determined based on a deviation from the child support guidelines. See In the Interest of B.A.L., No. 07-11-00109-CV, 2012 Tex. App. LEXIS 1502 (App. Feb. 27, 2012) [Where the trial court did not abuse its discretion by failing to modify a father’s child support obligation under Tex. Fam. Code Ann. § 156.401(a) because it was not in a disabled child’s best interest to have the father pay court-ordered child support where this would have resulted in a reduction of Supplemental Security Income benefits.]

4.The Amount Of Time And Possession That Obligor Parent Has Of The Child

What is possession? Possession is the legal term for visitation. Simply put, possession means the amount of time that an obligor parent spends with their child. In our context, the amount of time and possession that an obligor parent has of their child may allow the court to deviate from the child support guidelines.

The policy behind this factor is straightforward: if an obligor parent has care and control of the child more than the custodial parent, then the obligor parent should not be made to pay double support for the child.

For a real life example of this factor see, In the Interest of L.J.M., No. 13-13-00367-CV, 2014 Tex. App. LEXIS 7170 (App. July 3, 2014) [ Where a father’s support for his disabled adult child was properly increased (deviating from the child support guidelines) because (1) a trial court’s findings encompassed each element of Tex. Fam. Code Ann. § 154.306, and, (2) under Tex. R. Civ. P. 299, an appellate court could supply by presumption facts the evidence supported, so legally and factually sufficient evidence justified the increase.]

5. The Amount Of The Obligor’s Net Resources (Intentional Unemployment)

A Trial Court has discretion whether or not to deviate from the child support guidelines (“May” creates discretionary authority or grants permission or power”). Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 874 (Tex. 2005)

Sometimes the Court will deviate from the guidelines if there is a finding that an obligor parent was intentionally unemployed or underemployed. This means that the Court will not set child support based off of the net resources that an obligor parent currently has if the obligor parent is intentionally underemployed or intentionally unemployed. What does it mean to be intentionally unemployed?

An obligor parent is intentionally unemployed if the obligor parent refuses to work. This is ultimately a fact question for the Court to decide. While on the other hand, intentionally underemployed means that the obligor parent intentionally does not work in a particular field or in a capacity that is comparable to their earning capacity. The Court may decide that an obligor parent’s earning capacity based on the obligor’s experience, education, and previous work history.

If the Court finds that an obligor parent is intentionally underemployed or intentionally unemployed, the Court can set the child support amount based on the obligor parent’s earning potential.

For a real life example of how this all works out, see Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) [Where The husband voluntarily quit a job where he was making $ 102,000 per year. Six months later, the wife filed for divorce. The trial court determined that the husband was intentionally unemployed or underemployed.]

Additionally, see also Coburn v. Moreland, 433 S.W.3d 809 (Tex. App. 2014) [Where a Texas Appeals Court confirmed a Trial Courts decision to deviate from the child support guidelines deciding that there was sufficient evidence from which the trial court could have properly concluded under Tex. Fam. Code Ann. § 156.401(a)(1) that the father’s circumstances changed in that he was not voluntarily unemployed or underemployed when the divorce decree was executed but became so when he began pursuing his new venture-capital business.]

6. The Amount Of Child Care Expenses

The amount of child care expenses will depend upon the age of the child. Generally, older school- aged children may not need to be enrolled in daycare. However, younger children may need to be enrolled in daycare. Daycare is an example of a child care expense. As such, the Court may deviate from the child support guidelines if the obligor parent is responsible for child care expenses such as daycare.

This means that the Court may make some adjustments in the amount of child support that is ordered to be paid by the obligor if the Court finds that the obligor parent contributes to child care expenses. You should consult with a lawyer to determine whether or not the child care expenses that you pay may qualify as a factor to deviate from the child support guidelines.

7. The Amount Of Care For Any Other Children

So what does this mean? The amount of care for any other children means exactly what it says. In some instances, the obligor parent will have additional children that need to be provided for in addition to the child or children that are the subject of a pending child support order.

If the obligor parent has additional children that they provide support for, the Court may take the additional children into consideration when determining the obligor parent’s child support payments. The obligor parent must demonstrate the amount of expenses incurred for the care of the additional children that the obligor parent is responsible for.

8. The Amount Of Alimony Paid Or Received By Either Party

This is pretty straightforward. The amount of alimony paid or received by either party means that a Court may take into consideration the amount of alimony that an obligor parent receives and the amount of alimony that a non- obligor parent receives. In Texas, there is no such thing as an alimony payment. However, an obligor parent or a non- obligor parent may receive spousal maintenance. Spousal maintenance is a similar concept in that spousal maintenance is a payment made to an individual by their previous spouse.

A Court may deviate from the child support guidelines if either a non-obligor parent or an obligor parent receives spousal maintenance. You will need to speak with a lawyer to determine whether you or your ex-spouses spousal maintenance award will permit you or your ex-spouse’s to deviate from the child support guidelines.

9. Any Expenses For College Education

College fund anyone? For those parents who decided to create a college savings account for their children, and are now in the process of determining the amount of child support that one parent may be required to pay, the Court may take that into consideration when deciding whether or not to deviate from the child support guidelines. Specifically, the court may look to see how much the obligor parent and non-obligor parent have contributed to their child’s college fund.

The bottom line is that a Court has discretion in deviating from the guidelines prescribed in the Texas Family Code when determining the amount of child support that an obligor parent is required to pay. In determining whether or not to deviate from the child support guidelines, the Court will always consider the Best Interest of the Child contemporaneously with the evidence of facts presented to it.

Texas Courts have recently issued a decision regarding this factor. See Bartlett v. Bartlett, 465 S.W.3d 745 (Tex. App. 2015) [Where father agreed to pay college expenses so long as son maintained a C average in school. The Court found that the father’s agreement to pay college equivocated to a post-minority contract between him and his son. Therefore the agreement to provide college expenses was not considered to be child support. [providing that the father would pay the children’s college tuition and expenses was not an agreement for child support but were for post-majority support, and therefore, the provision was enforceable by contract regardless of Tex. Fam. Code Ann. § 154.124(c).]

10. Any Non-Cash Compensation From Work (Car, Housing, Etc.)

What are non- cash benefits? Non-cash benefits can come in various forms, such as the use of a company vehicle or use of company cash accounts at local grocery stores, department stores, and housing.

See Golias v. Golias, 861 S.W.2d 401 (Tex. App. 1993) [Where trial court deviated from child support guidelines finding that the obligor parent (which happened to be the father) should pay child support in an amount exceeding the child support guidelines based on the father’s non-cash benefits. The Court noted that, The obligor parent, “has additional non-cash benefits from Helena Laboratories which include the free use of an Acura Legend motor vehicle, free S insurance on that vehicle, the free use of the Helena Laboratory [*404] accounts at Jason’s Deli, Don’s Seafood, Carlo’s Restaurant and Jack’s Pak-It Grocery store.”]

11. Any Wage Deductions

What are wage deductions? Generally, a wage deduction is a specific amount that is withheld from an individual’s pay. Will the Court deviate from the child support guidelines due to an obligor parent’s wage deductions? The general answer is yes. A Court may consider deviating from the child support guidelines based upon an obligor parents wage deductions.

A Texas Court has considered this issue previously. See In the Interest of Allsup, 926 S.W.2d 323 (Tex. App. 1996) [Where the Court deviated from the child support guidelines because the obligor parent incurred wage deductions, the Court noted the following, “Many jurisdictions that have examined this issue in connection with Social Security retirement benefits have found that a parent is entitled to credit for payments contemporaneous with the parent’s support obligation.

See, e.g., Miller v. Miller, 890 P.2d 574 (Alaska 1995) (father entitled to credit on support payments because child’s entitlement derives from parent; payments represent earnings from parent’s past contributions); Stultz v. Stultz, 644 N.E.2d 589 (Ind. [**11] App. 1994) (parent entitled to credit because benefits earned by employee based on contributions in the form of deductions from wages); Lago v. Trabucco, 207 A.D.2d 92, 621 N.Y.S.2d 824 (N.Y. App. Div. 1994.)”]

12. Any Health Insurance And Uninsured Medicals

Health insurance is generally considered to be a component of child support. Therefore, a Court generally orders an obligor parent to pay for a child’s medical insurance. Typically, if a non-obligor parent carries the child or children (who are at the center of a child support order) on their insurance, a Court will typically order the obligor parent to reimburse the non-obligor parent for a percentage of the medical insurance that the non-obligor parent pays.

In some instances, a Court can deviate from the child support guidelines when an obligor parent pays for a child’s medical needs out of pocket. For example, imagine that our couple, Zhan, and Julie do not have health insurance for their twins. One of their twins needs extensive dental work and Zhan pays for the dental work and necessary upkeep out of pocket. The dental work and upkeep are routine procedures and require Zhan to make a routine out of pocket payments. In this scenario, a Court may consider adjusting the amount of child support that Zhan would have to pay.

13. Any Special Needs Of The Child

What is considered to be special needs of a child? Special needs can range from physical therapy and tutor to speech therapy or counseling. The list of what is considered to be special needs is not exhaustive. It will be a fact-based determination. This means that the special needs of the child will be based on the child. A Court can decide not to adhere to the support guidelines when a child that is the subject of a child support order is in need of additional care based on the special needs of the child.

For an example of how this works in real life, See In the Interest of P.C.S., 320 S.W.3d 525, 542 (Tex. App. 2010) [Where the trial judge stated in part that Father shall be ordered to pay $400 per month in addition to the guideline amount of child support “to cover additional costs incurred by virtue of the children’s special needs.]

14. Any Cost Of Travel To Exercise Possession

Sometimes, an obligor parent has to travel a great distance to visit with their child. Let’s say for instance that an obligor parent lives out of state. The obligor parent has to travel by plane, bus or train in order to visit with their child. The amount of a plane ticket alone will make some people weep. Some plane tickets are in excess of thousands of dollars.

Now, imagine having to pay for a multi-thousand dollar plane ticket at a minimum of three times a year. On top of paying for the plane tickets, the obligor parent is required to pay child support as well. In order to strike a balance between the amount of support payments that are made and the amount of visitation expenses that an obligor parent incurs while exercising their visitation rights, the Court may deviate from the guidelines.

For an example, see In re Marriage of Bertram, 981 S.W.2d 820 (Tex. App. 1998) [Where in the final judgment dissolving the parties’ marriage, the trial court named appellee sole managing conservator of the children, ordered appellant to pay child support in an amount exceeding the statutory guidelines, and set the terms of visitation, including an order directing appellant to pay all travel costs associated with the visitation.]

15. Any Positive Or Negative Cash Flow From Property

What does it mean to have a positive or negative cash flow from the property? In short, in our context, it means any income that is added to an obligor parent’s property. This could mean rental payments that an obligor parent receives. Or in the alternative, free labor that an obligor parent receives. The bottom line is that if an obligor parent has additional resources that they are privy to, a Court may decide based on the needs of the children that are subject to the suit to increase or decrease the amount of child support that is ordered.

For an example of how this all works, See In the Interest of P.C.S., 320 S.W.3d 525 (Tex. App. 2010) [Where the trial court erred by failing to include the father’s $400,000.00 inheritance in his net resources because of Tex. Fam. Code Ann. §154.062(b)(5) (Supp. 2009) indicated no intent to exclude from “resources” income involving nonrecurring payments and include only periodic payments, or to include only sums paid to the obligor respecting his capital or labor. However, the trial court did not err by failing to include the father’s employment benefits as part of his net resources under § 154.062(b) because they were subject to consideration under Tex. Fam. Code Ann. § 154.123. ]

16. Any Debts Assumed By Either Party

Sometimes an order of support is issued upon divorce. In other situations, an order of support is issued just between the two parents. In any case, there may be debts assumed by either party that may impact the way support is ordered.

Most commonly, when a divorce takes place, either the mother or father may take on the responsibility of paying a debt that was incurred during the marriage. Sometimes the amount of debt will be big enough to significantly impact the paying parties livelihood. In an effort to ensure that the child will be taken care of adequately, the Court can modify the guidelines. The Court will only do so if it finds it is in the best interest of the child to do so.

17. Any Other Reason That Deviating From The Child Support Guidelines Would Be Or Is In The Best Interest Of The Child

What is the best interest of the child? There is no right or wrong answer when determining what is in the child’s best interest. The answer to that question will really depend on the situation. What works for some may not work for others. Therefore, if a circumstance arises whereby the Court is satisfied that the best interest of the child is served by adjusting the guidelines, then the Court will do just that.

Let’s move on and discuss another issue that may arise when determining the amount of child support that an individual might be ordered to pay.

I’m Not Working Right Now, Will The Court Deviate From The Child Support Guidelines?

The general answer is no. A Court will not deviate from the child support guidelines due to an obligor parent not working. According to the Texas Family Code Section 154.068, if a Court cannot determine an obligor parent’s income because they are not working, the Court can presume that the obligor parent is earning minimum wage. The presumption of a minimum wage earning is based off on The Federal Minimum wage for a forty hour work week.

If you believe that your current situation will permit you an opportunity to deviate from the child support guidelines listed in the Texas Family Code, you should contact a licensed attorney immediately to discuss the facts of your circumstances.

Summary

Although it may be unlikely, a Court can deviate from the child support guidelines. A court can decide to issue an order of child support based on the special needs of the child, the travel expenses incurred by the obligor parent and child care expenses paid by the obligor parent. At any rate, a Court will only deviate from the guidelines if it finds it is in the best interest of the child to do so.

Citations

[1] In the state of Texas, the terms used for custody and control in a Family law context is: Conservatorship and Possession.

[2] Texas Family Code Section 154.123

[3] “We do not believe incarceration alone can rebut this minimum wage presumption. See Reyes, 946 S.W.2d at 630. As the Attorney General points out, many people enter prison with assets from past employment. Some inmates earn an income while in prison. In the absence of proof of an incarcerated person that he or she does not have such resources, it would not be in the best interest of his children to excuse that person from support obligations. See Sanchez, 915 S.W.2d at 102 (primary consideration in assessing child support is best interests of the child). In addition, although the obligor parent may not be able to make support payments now, the assessment makes it possible for the obligee parent to collect arrearages, should the obligor’s financial condition improve in the future.” In the Interest of M.M., 980 S.W.2d 699, 701 (Tex. App. 1998)

 

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