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It’s the physical custody – meaning, the amount of time a parent spends with a child – that determines who will make child support payments. Although a court could order either or both parents to support a child, in most cases the non-custodial parent, the parent with the least amount of time with the child (or children), pays child support.
The amount of the payments is based on a percentage of the non-custodial parent’s income. You can estimate how much your child support payments will be by using the state’s child support guidelines, which are simply a fee schedule. While parents are free to pay more than the guideline amount, they can’t agree between themselves to pay less. In any event, a court must approve the payments. Also, there are circumstances where the result given by the guidelines would be unfair to a parent or the child. In those cases, a court will review a set of factors and may adjust the amount of support either up or down.
Just because one parent tends to pay child support, that doesn’t mean that the other parent is off the hook for the costs of raising a child. Instead, the law assumes that the custodial parent spends the money directly on the child. In other words, the custodial parent automatically pays child support through the daily cost of raising the child.
Calculating the amount of child support from the guidelines is a straightforward process, once you know the non-custodial parent’s net monthly income. To determine net monthly income, you first take all available income and then make specific deductions, explained below.
For child support purposes, income includes all wages, salary, commissions, tips, overtime, and bonuses. Even if unemployed, the paying parent probably still has income in the form of severance, retirement or unemployment benefits, and from social security or workers’ compensation awards. Income also includes gifts, prizes, and alimony, among other things. If this parent collects rent from a property, then add in the net rental income as well.
Additionally, a court may assign an income value to assets that do not currently produce income, like a second house or car, if it’s appropriate to do so. For example, a parent may not have a job but could have received property in an inheritance. In cases like this, if the asset – say a vacation home bequeathed from grandma’s will – can be liquidated (sold), then a court will consider its market value as part of income.
Likewise, in situations where a parent is purposefully unemployed or underemployed to avoid making support payments, then a court can impute (attribute) income to that parent based on what he or she should be earning.
You can exclude certain assets like capital – for instance, you own a business and had to raise a certain amount of money (capital) to run it. That specific amount, along with return of principal and any accounts receivable, would not be subject to child support payments. You can also leave public assistance, payments for foster care of a child, and some non-discretionary retirement plan contributions out of your income calculations. For a complete list of what to include and what to leave out, see Texas Family Code Section 154.062.
Finally, for parents who already pay child support for another child or children, they can take a credit for those payments, which would be subtracted from net income before applying the guidelines. To find out more on how to do this, see the Texas Family Code Sections 154.128 and 129.
Once you have the total amount of income, you subtract money paid for social security taxes, state and federal income taxes, union dues, and the amount used to cover the child’s health insurance. The difference is the net income. Divide it by 12 to get the net monthly income.
Take the net monthly income and apply it to the guidelines, which look like this:
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
Obligor is the legal term for the parent who is obligated to pay child support. Once again, this is usually the non-custodial parent.
In addition to the support amount determined by the guidelines, the parents will have to cover the child’s health insurance, too. While there is a presumption that the non-custodial parent will provide this benefit, that responsibility can easily shift to the other parent if it makes more sense. For example, the custodial parent may provide the child’s insurance if this parent’s employer provides health insurance while the non-custodial parent lacks coverage.
Incidentally, the percentages above are used for net monthly income up to $7,500 a month. For income above $7,500, a court may increase the amount of support depending on the income of both parents and the child’s needs.
A court presumes that the number given by the guidelines is the appropriate amount of child support. Sometimes, however, the amount given by the guidelines is unfair. If you think support should be increased or decreased before a court issues the order, then you can ask the court to adjust it. Once you ask, a court will review all relevant factors, but especially the following, to adjust the amount of child support either up or down:
1 the age and needs of the child
2 the parents’ ability to support the child
3 financial resources and debts
4 the time the child spends with each parent
5 the receiving parent’s net resources
6 child care expenses
7 the managing conservatorship (legal custody)
8 alimony payments
9 post-secondary education expenses
10 whether either parent has additional employment benefits like housing or a company car
11 other wage deductions
12 the provision of health insurance
13 extraordinary expenses like those for education or health care
14 costs of the child’s travel between parents, and
15 any cash flow from property or other assets.
Once a child support order is in place, you can still ask a court or the attorney general’s office (via the Child Support Review Process or CSRP) to review it at any time if either parent experiences a material and substantial change in circumstances. Usually, a substantial change is a significant shift in custody or loss of a job, but there can be other reasons. The threshold is lower if an order has been in place for three years or more.