Texas law provides a mathematical formula to calculate the amount a noncustodial parent will owe in child support.

The noncustodial parent will be obligated to pay child support until the child is 18 years old or graduates from high school, whichever is later.  If the child turns 18, the child must continue to be enrolled in school and comply with minimum attendance requirements imposed by that school.  The child support obligation will also end if the child is emancipated by marriage or by a court order.  The child support obligation may also continue indefinitely if the child is disabled.  A child is considered disabled for child support purposes if:   

1. the child requires substantial care and supervision because of a mental or physical disability and is not capable of self-support; and
    
2. the disability exists, or the cause of the disability is known to exist, on or before the child’s 18th birthday.

Child support is a percentage of the net income of the non-custodial parent’s income.  The percentage varies depending on the number of children for whom the child support is ordered and the number of other children that parent is supporting, such as children from a previous marriage.

Net income includes the following:

1. 100% of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
2. interest, dividends, and royalty income;
3. self-employment income;
4. net rental income (defined as rent after deducting operating expenses and mortgage payments, but NOT including non-cash items such as depreciation); and
5. all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
    

Net income does NOT include:
 

1. return of principal or capital;
2. accounts receivable;
3. benefits paid in accordance with aid for families with dependent children (welfare payments); or
4. income from a new spouse
    

The following items are deducted from your resources prior to calculating child support:

1. social security taxes;
2. federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
3. state income tax;
4. union dues; and
5. expenses for health insurance coverage for the child for whom child support is paid.
    

What constitutes income and what deductions are allowed for self-employed persons can get quite complicated. Consult an attorney to discuss specific circumstances in calculating child support.

If your income varies over time, the courts may take your average income over a period such as your average income over six months to one year.

How does the court decide the child support amount?

Texas has established a formula to calculate what amount a non-custodial parent should pay for child support. If a non-custodial parent’s net monthly income is less than $6,000, Texas law has established the following guidelines for child support payments. The amount withheld is based on the net income each month.

• 20 % for one child

• 25 % for two children

• 30 % for three children

• 35 % for four children

• 40 % for five children

• Not less than 40 % for six children

Special rules apply in cases of split or joint placement or multiple children in different households. If a court believes the NCP is not earning within expectations, the child support amount may be based on earning potential.  This is the income that you could potentially earn.

 In the event there are other children, you are obligated to support either by other court orders or because they live in your home, you can receive a small deduction in the percentages above. For instance, if you support one additional child under another court order, child support will be 17.5% of the net resources rather than 20%.

If disabled and receiving social security disability payments, contact the Social Security Administration regarding any benefits the child may be entitled to receive as a result of this disability. When setting or modifying support, the court will subtract the benefits made to or for the child because of the disability from the amount ordinarily owed for child support. There may be no additional child support beyond what the child receives from Social Security.
 

What if I lose my job or I am unable to pay child support?

If you lose your job, make less money than you used to, or become physically disabled and unable to earn an income, you should notify the court immediately. However, simply telling the court clerk or the Child Support Division of the Office of the Attorney General is not enough to reduce the amount of child support you owe. You must obtain an order from the judge or child support master. Consider obtaining a lawyer, if you can afford one, to handle the attempt to change the amount of child support owed. Many non-custodial parents believe that if they get behind at a time when they are legitimately unable to make a child support payment, that the amount owed can later be reduced or discounted by the court when an explanation is given. However, if you wait to explain your changed circumstances, the court will be unable to reduce the back payments you owe. It is very important that you immediately notify the court, provide proof of the reduction in income, and ask that the payments be reduced accordingly. If you do this, the court may temporarily or permanently reduce the amount of future payments.

In order to change your child support, prove to the court that:

1. the circumstances of the child or a person affected by the order (such as yourself), have materially and substantially changed since the prior order was rendered; or
2. it has been three years since the order was rendered or last modified AND the new child support amount would be at least 20% or $100 per month less than the old child support amount.

The court may also order you to seek employment or participate in an employment-training program, such as those offered by the Texas Workforce Commission.

Suppose extra child support was paid voluntarily but you can no longer continue to do so. Can that be used to try to force you to continue to pay the extra child support? The Texas Family Code states, “a history of support voluntarily provided in excess of the court order does not constitute cause to increase the amount of an existing child support order.”

How does remarriage affect child support?

The new spouse’s income cannot be used to calculate higher child support. Likewise, your new obligations to the new spouse or step-children cannot be considered to lower your child support obligation.

What happens if the other parent decides to let the child live with you?

You are still under a court order to pay the child support until you have a new court order. Go back to court and have the orders changed to give you primary conservatorship of the child and change the child support order to eliminate your obligation, and perhaps order the other parent to begin to pay you child support.

What if the non-custodial parent is called to active duty in the military? This is considered a material and substantial change in circumstances (as discussed above) IF that active duty service:

1. is for at least 30 consecutive days; and
2. results in a decrease in your net resources during the period of service.

Once you return to civilian life, your child support may be increased back to the amount you were paying before going on active duty.

What are the steps for getting a judge to change the child support?

A Petition for Modification must be filed in the same county and court where the original order, or most recent modification, was filed. This court is the “court of continuing jurisdiction.” You must file in this court even if both parents no longer live in that county. There are ways to have the case transferred to another county, but that is beyond the topic of this article. Suffice it to say that you must file in the same court, at least to start. In the Petition you may request that the court schedule a hearing to decide whether your child support should be lowered.

You, or your attorney, must have a copy of the Petition for Modification served on the other parent, along with notice of the hearing date set by the court.

Present evidence at the hearing about your new income such as recent pay stubs or unemployment check stubs, or other documentation to show that the income has materially and substantially changed. If you represent yourself, you are expected to know all the rules of procedure and evidence.  The judge is forbidden from giving you any advice, such as how to get your pay stubs admitted into evidence.

This article is only intended to provide a basic understanding of child support and how it can be changed. It is directed more toward the parent who is paying the child support obligation, but much of the content applies to either parent.

Due to the complexity of issues involving children, be it child support, visitation, custody, or otherwise, consider seeking the assistance of an attorney. It is much less expensive to prevent a problem than it will be to repair the damage after the problem arises. Additionally, even if you are able to get the judge to sign the orders you prepared on your own, it may be unenforceable if certain language is not included.

Either parent may request a review of the child support order every three years, or more frequently if there has been a material and substantial change in circumstances, by contacting the Child Support Division of the Office of the Attorney General.