by LeAnn W. Diamond, Partner, O’Neil Wysocki, P.C.
The first question that is usually asked when I am consulted in a divorce involving children is either “how much child support can I get” or “how much child support am I going to have to pay.” For years it was quite easy to answer this question by finding out what the parent (usually the husband) who was going to be paying child support made by looking at their paystubs and then applying the guidelines set out in the Texas Family Code to calculate child support. The courts have wide discretion, however, to veer from guideline child support and order additional child support based on the child’s as well as the parents’ circumstances. This article addresses factors affecting how child support is calculated.
In any suit affecting the parent-child relationship, one or both parents may be ordered to provide child support, both in monthly financial payments and in providing and/or paying for health and dental insurance. Typically, the parent who is the “non-primary” parent of the child pays the “primary” parent child support. Absent agreement between the parents, the court is required to determine which parent shall be appointed the “primary conservator” of the child. The court has wide discretion in determining an appropriate amount of child support. The child support ordered may be reviewed every three years or upon a “material change of circumstances” to determine if the child support previously ordered is still equitable and in the best interest of the child.
Chapter 154 of the Texas Family Code provides that the court shall determine an equitable amount of child support for a child and that the child support guidelines in the Texas Family Code are rebuttably presumed to be in the best interest of the child. For the purpose of calculating child support, these guidelines apply a percentage to a range of net earnings from minimum wage on the low end to maximum net earnings of $9,200.00 per month. Child support is then calculated at 20% for one child, 25% for two children and so on, with the maximum percentage being 40% of net resources. If a parent who is ordered to pay child support has a legal obligation to support children from different relationships, that parent will receive a small percentage reduction in the child support to be paid.
However, a court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances. The court may consider additional factors to determine whether variance from the guidelines is justified. These nonexclusive factors include the age and needs of the child, the ability of the parents to contribute to the support of the child, the financial resources of the parents, the amount of time a parent has possession of the child, whether a parent is intentionally unemployed or underemployed, whether a parent has property and other assets which could be liquidated to provide support, childcare expenses incurred so that a parent can work, conservatorship or possession of other children, alimony or spousal maintenance being paid or received, college expenses incurred for a child, employee benefits received by a parent, extraordinary expenses of the child, etc. Essentially, the court may consider any factor the court deems relevant and is only subject to appellate review on the basis of an abuse of discretion standard.
Therefore, the calculation of child support is totally dependent on the court either applying the guidelines, or else giving reasons why child support varies from guidelines. Consider the scenario where the obligor parent has net resources which far exceed the obligee parent’s, is it equitable to limit child support to guideline support which only applies to the first $9,200.00 of net resources? Many courts will do just that unless they are asked to vary from guidelines. The end result is that there are significantly more funds available to provide for the child in one household versus the funds available to provide for the child in the other household. This results in a disparity of the living conditions that can be provided to the child by the obligor parent when compared to the obligee parent. Most courts will take into consideration the impact of this disparity on the child in ordering child support. Other courts will give no consideration to this reality. It is very important to consult with an experienced family law attorney so you know which court you are in and whether the court sticks to guidelines or is willing to vary from guidelines.
