Texas courts generally order “guideline child support.” Exceptions to this pattern are uncommon; these guidelines are presumed to be in the best interest of children. However, certain factors can influence courts to deviate from child support guidelines.
Consideration of Other Factors
Although child support is typically set with reference to guidelines contained in the Texas Family Code, under some circumstances, a Texas court may consider additional factors. To deviate from the Texas Family Code’s guidelines, a court must find that they would be unjust or inappropriate.
Some factors that may contribute to such a finding include:
- The ability of the parents to contribute to the support of the child; or
- The age and needs of the child; or
- Any financial resources available for the support of the child; or
- The amount of time and possession that obligor parent has of the child; or
- The amount of the obligor’s net resources (intentional underemployment); or
- The amount of childcare expenses; or
- The amount of care for any other children; or
- The amount of alimony or spousal maintenance being paid/received by either party; or
- Any expenses for college education; or
- Any non-cash compensation from work (car, housing, etc.); or
- Any wage deductions; or
- Any health insurance and uninsured medicals; or
- Any special needs of the child; or
- Any cost of travel to exercise possession; or
- Any positive or negative cash flow from property; or
- Any debts assumed by either party; or
- Any other reason that deviating from the child support guidelines would be or is in the best interest of the child.
Additionally, parties may agree to a different support structure.
We explore some of these factors in detail below:
The Ability of the Parents to Contribute to the Support of the Child
This factor takes into consideration both the income of parents and the needs of children, particularly when an obligor parent suffers a layoff or reduced employment. 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 child support guidelines. 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.
Financial Resources Available For The Support Of The Child
This factor refers to a court’s ability to weigh external financial resources used to support a child’s needs. Examples of additional resources might include trusts or government benefits. If a child is the beneficiary of a sizable trust, a court may consider reducing the obligor’s parent’s child support. A government benefit is a payment or subsidy issued by a form of government. Similarly, a court may consider whether a child receives Children’s Health Insurance Program (CHIP) benefits or Supplemental Security Income.
Possession of Obligor Parent
Possession refers to the amount of time an obligor parent spends with their child. A court may weigh substantial possession and access by an obligor parent as a factor in deviation from guideline child support.
Obligor’s Net Resources (and Intentional Unemployment)
In some circumstances, a court will deviate from child support guidelines (and a determination based upon net resources) if they find that an obligor parent is intentionally unemployed or underemployed. Intentional unemployment is clear when an obligor parent refuses to work. Intentional underemployed occurs when an obligor parent fails to work in a capacity comparable to their earning potential. A court may determine earning capacity based on experience, education, and previous work history. If a court finds either of these descriptions to apply, they may order support based upon earning potential.
Amount of Care for Any Other Children
In some instances, an obligor parent will need to provide for children in addition to those subject to a pending child support order. In these circumstances, a court may consider lowering support obligations. In order to accomplish this, the obligor parent must demonstrate expenses incurred for the care of the additional children.
Alimony Paid or Received by Either Party
Generally, courts may take into consideration any alimony received by either parent. In Texas, while there are no alimony payments, courts may weigh spousal maintenance. Speak with a lawyer to determine whether a spousal maintenance award will allow your spouse or former spouse to deviate from child support guidelines.
Courts may weigh contributions to education, such as college funds, when considering deviation from guideline child support.
Non-cash benefits may arise in various forms, including use of a company vehicle or cash accounts at local grocery stores, department stores, and or for housing.
Health Insurance and Uninsured Medicals
Health insurance is generally considered to be a core component of child support. If a non-obligor parent carries the children subject to the order on their insurance, a court will typically order the obligor parent to reimburse for a percentage of that insurance. Additionally, they may weight situations in which an obligor parent pays for a child’s medical needs out of pocket
Special needs can range from physical therapy and tutoring to speech therapy or counseling. The determination of special needs will be made on a case by cases basis after examining the needs of each child.
Cost of Travel
Some obligor parents must travel great distances to visit their children. However, paying for consistent out-of-state travel is financially infeasible for many parents . Courts will strive to strike a balance between support offered to the non obligor parent, and the financial costs associated with travel for the purposes of visitation.
Positive or Negative Cash Flow from Property
Rental payments or free labor received by an obligor parent may influence a court to deviate from guideline support.
Debts Assumed by Either Party
Debts assumed by either party that may impact ordered support. Upon divorce, debts must be divided among spouses. Courts will weigh the burden of the divided debts when making a support determining in the best interest of the children.