Sep 03
Let’s drill down the factors that could determine child support in special cases.
The general answer is “not usually”. Although child support is typically set based on the guidelines enumerated in the Texas Family Code, under some circumstances, a Court will consider additional factors when determining the amount of child support that an obligor parent will be ordered to pay. Additionally, parties 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:
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.
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.
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? Previously in a case, 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.
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 decided that an obligor parents amount of child support should be determined based on a deviation from the child support guidelines.
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.
A Trial Court has discretion whether or not to deviate from the child support guidelines. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. If you would like to review your case, speak with an experienced attorney today to understand potential range of outcomes.
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