What is child support and how much child support do you have to pay?
Child support is money paid by one or both parents to care for the child, often as a result of court order, until the child is 18, or graduated from high school (whichever event occurs later). The court may end child support payments if any of the following occur:
- Emancipation of the child
- Enlistment in the military by the child
- Marriage of the child (though the child would still need to be emancipated to get married before the age of 18)
- Death of the child; or
- If the parent paying support is found to not be the parent by genetic test (i.e. a blood test)
In some cases, child support may continue indefinitely, such as when a child develops a disability before they turn 18. In such cases, the court may require child support for the child.
The Family Code establishes a baseline for what a party may have to pay in child support. If the court finds that the minimum child support requirements are insufficient to meet the child’s needs, the court can order an increased amount. If the court finds that the amount is too burdensome on the paying parent, the court can order a child support value below the guideline
Most judges will not set a $0 child support, because it is not the best interests of the child (BIC). If there has been a previously executed Mediated Settlement Agreement (MSA), then the court is bound to the MSA.
What if the parent who pays child support dies?
If a parent who is obligated to pay child support dies before the obligation terminates, the remaining unpaid balance becomes payable on the date the obligated parent dies. If a managing conservator dies, the other parent still maintains a duty to pay child support to the person who takes the place of the managing conservator parent. If this situation arises, but the other parent gets custody, no child support is owed since this parent now fully supports the child.
Can you stay unemployed and avoid child support?
No. Intentionally staying unemployed or being underemployed, meaning having the ability to work but purposely working in a job that is below your ability and earning potential, may lead to additional child support being due.
Is there such a thing is retroactive child support?
Yes. Retroactive child support is a way of reaching back in time and having the parent who owes support pay what they should have paid already. Generally, the court will only go back 4 years, but if some bad conduct occurred, the court could order child support going back to when the child was born.
The child is the only one that can bring suit for child support after turning 18, until the child turns 22. Parents may only file for retroactive child support before the child reaches 18. The court looks at numerous circumstances to determine whether or not it should grant retroactive child support, including whether you knew or should have known about the child. The court also usually presumes that only ordering retroactive child support for the 4 years preceding the action is in the best interest of the child. This presumption may be overcome, meaning you may have to pay more than 4 years if:
- You knew or should have known you were the father, and
- You avoided paying child support by hiding from the court.
Generally, the court will order you begin paying 30 days after the judgment is rendered, and child support payments do collect interest if not paid.
If one parent fails to pay child support, can you prevent them from seeing the child?
No. The court may look at failure to pay in determining access to the child, but failure to pay cannot be the sole issue that leads to a ban on visiting either by a parent or by the court. Payment of child support does not determine access to the child.
Do you still have to pay child support even in cases of joint custody?
Yes. Even if parents share custody of the child, the ultimate goal is care for the child’s needs. The court may order one or both parents to pay child support regardless of the child’s living situation.
How is child support calculated in Texas?
Child support is calculated using your pay after taxes and guidelines from the state of Texas. Net income is income after deductions are taken out. Here is a breakdown of what you can generally expect to pay.
- 1 kid: 20% of net income (from the noncustodial parent)
- 2 kids: 25% of net income
- 3 kids: 30% of net income
- 4 kids: 35% of net income
- 5+ kids: 40% of net income
Remember, even if you are not employed, you still have to pay child support, per the court order.
Above and Below Guideline Child Support
Texas has guidelines for assessing the amount of child support one should pay. Those guidelines are, however, not always appropriate. If a client is seeking above-guideline child support, the law requires us to have a valid reason.
Some such reasons may be that the child has extraordinary expenses due to extracurricular activities, due to medical expenses or a medical conditions, or due to educational disabilities. All of those are reasons to ask the court for above guideline support. If a client is seeking lower than guideline support because of their income limitations, the court may look at factors such as inconsistent income.
How do you pay court-ordered child support?
Your employer can take child support directly out of your paycheck and send it to the State Disbursement Unit. This is the quickest way to send child support, typically. You can also pay via check (or money order) by sending the funds to the State Disbursement Unit. In order to send a check, you need to know your case number, so be sure to keep records readily available for your reference. The OAG (Office of the Attorney General) also has an online portal to make child support payments and keeps track of payments made.
Why is a child support case open when neither parent applied to open one?
The Texas OAG opens a child support case when a custodial parent applies for benefits, such as Medicaid. Even if neither parent specifically opened a case, the OAG automatically opens the case.
Can you modify a child support order?
Yes. Child support orders may be modified through a court hearing or through a child support review process (CSRP). If both parents can agree on the modified order, a CSRP may make more sense and be a quicker route. Only a court order can change a child support payment amount, an agreement between parents does not modify the order and child support will still be owed as per the court order.
When can you modify a child support order?
A child support order can be modified if:
- More than three years have passed since the original order or modification AND the monthly child support payment amount has changed by either 20% or $100 from the amount in the child support guidelines; or
- A material (meaning closely related) and substantial change in circumstances happened since the last time the court determined child support payments
What qualifies as a material and substantial change?
Many things can qualify as a material and substantial change. Here are some:
- Increase or decrease of noncustodial parent’s income
- Including: loss of a job or starting a new job
- The noncustodial parent has more children or is obligated to pay for additional children (increase of legal responsibility)
- Medical insurance has changed for the child
- Additional health care costs for the child
- Development of special needs by the child
- Living arrangements have changed for the child
If you are unemployed, can child support get taken out of unemployment benefits?
Yes. As much as 50% of unemployment benefits can be withheld to pay for child support. The Texas Workforce Commission can withhold child support payments (and medical support payments).
Do you need to be concerned about providing medical insurance for your child if you are laid off?
Yes. If you previously paid medical insurance for your child, but you lose the job that gives you insurance, one thing to do is request a review of a child support order. Sometimes, orders may be modified for a reason such as loss of a job. One solution would be to look at whether the custodial parent may reasonably afford to add medical insurance, but you must reimburse the custodial parent.
If you request a modification of a child support order, will the judge lower it?
Not necessarily. A judge may actually raise the amount of child support required in the modified order. For example, if you make more money than you did at the time of the original order, the judge may raise the amount you are required to pay.
Can you go to jail for failing to pay child support?
Yes, there are basically two avenues for which a parent can be sent to jail for failing to pay child support.
- Under Texas law, a judge can find you in contempt of court and place you in jail for up to six months for not following a court order to pay child support.
- You could also be found to be in violation of Texas Penal Code 25.05, which makes it a state jail felony to “intentionally” or “knowingly” fail to provide court-ordered child support for a child under 18. This is often referred to as criminal nonsupport. A state jail felony is punishable by up to six month to two years in a state jail facility and a maximum $10,000 fine.