San Antonio Child Support Lawyer
In a divorce or child custody case, the primary parent is typically entitled to receive child support from the other parent. The parent who is paying child support is called the “obligor” and the parent receiving child support is called the “obligee”. With that terminology clear, how is the amount of support decided?
While parents can negotiate any child support amount they want, courts will set the child support amount based on guidelines issued by the State. This is often called “guideline child support”. How do you calculate guideline child support? There is a 3-step process:
- Determine the obligor’s net resources
- Apply the guidelines based on the obligor’s income and number of children
- Consider reasons to deviate either up or down from the guideline amount
This process is explained in more detail in the following section.
How to Determine Net Resources for Child Support
The first step in calculating child support is to determine the net resources of the obligor (the person who will be paying). When the guidelines speak of “net resources”, they basically mean income. The main net resource is the wage and salary income from the obligor’s employment. What counts as employment income for purposes of child support?
The following sources of income do count if actually received:
- wages and salary
- self-employment income
- severance pay
- retirement pay
- Social Security benefits (except SSI)
- VA benefits (with some exceptions)
- unemployment benefits
- disability and workers’ comp benefits
- child support
- rental income
- interest income
- capital gains
- trust distributions
- annuity income
- gifts and prizes
- “deemed” income
The follow sources of income do not count toward calculating child support:
- return of capital or principal on a note
- accounts receivable
- welfare benefits, such as TANF
- foster-care payments
- spouse’s income
Certain items have to be subtracted from the resources listed above in order to get “net resources”. The following are subtracted:
- income taxes
- Social Security taxes
- required contributions to a retirement plan
- union dues
- court-ordered health insurance, dental insurance and cash medical support for a child
Once you add up all the obligor’s resources and subtract out what has to subtracted out, you arrive at the amount of the obligor’s net resources. With this figure established, the next step is to calculate the amount of guideline child support. But before we get to that, you may be wondering what happens if the obligor is not working, or even worse, is intentionally unemployed or under-employed in order to avoid child support.
So, what if the obligor is unemployed? In such a case, the court will typically calculate his net resources as though he worked 40 hours a week at minimum wage, currently $7.25/hour. One important exception is if the obligor is actually incarcerated and will be for at least the next 90 days, in which case he obviously cannot work and his net resources will be based on actual income.
If the obligor’s income is significantly less than what it should be because he is intentionally unemployed or underemployed, the court can order his child support based on his earning potential. In these situations, it can often be difficult to prove intent. The obligor will be given the opportunity to provide alternative explanations, such as health problems, school, children or starting a business.
Applying Child Support Guidelines
Once you know the obligor’s net resources, how is this applied to the guidelines to determine the actual amount to be paid?
At this point, you might want to use the child support calculator on the website of the Attorney General, which can be found here.
If you want to know how the calculator works, the basics are as follows. In short, if the obligor has no additional children, the support amount is calculated using a simple formula based on the number of children. Specifically, the amount is 20% of his net resources for 1 child, 25% for 2 children, 30% for 3 children, 35% for 4 children, and 40% for 5+ children.
If the obligor has other children with a different parent, either living with him or with the other parent, a different formula applies. Without getting into too much detail, you can use this chart to see how much the support obligation would be.
It should also be noted that there is a cap of $9200 for net resources. If the obligor makes more than $9200 a month in net resources, the support obligation is calculated at $9200, unless you can show the child’s needs require more.
Also, if the child is receiving Social Security or disability benefits based on the obligor’s disability or old age, then that amount can be subtracted from the child support amount to be paid by the obligor.
Deviating from Guideline Child Support
As explained above, the court will calculate guideline child support based on the obligor’s net resources and the number of children. Does the court have to follow the guidelines? No — that is why they are called guidelines and not rules. While courts usually follow the guidelines, they are allowed to deviate, either up or down, and often do. They are allowed to consider the following factors when deviating from guideline child support:
- the age and needs of the child
- the child’s educational expenses
- the child’s health care expenses
- extraordinary expenses of the child or the parties
- other resources available to support the child
- other children of either party
- each party’s possession schedule (visitation)
- travel costs for visitation
- child care expenses
- the net resources of the obligee (the person receiving child support)
- employer-provided housing, vehicles or other benefits
- paycheck deductions
- cash flow from property or businesses
- any other reason related to the child’s best interests
As can be seen, there are any number of reasons a court can look at to deviate from the guidelines and award a child support amount that is greater than or less than the guidelines.
How Does Child Support Work in Texas?
Now that the amount of child support has been determined, you might wonder how it is paid. Typically, an employer withholding order will be sent to the obligor’s place of work, and the child support amount will be deducted from the paycheck. The Attorney General’s office also has a useful website that allows people to make payments online, for which a record will be made, and to get records of previous payments.
How long does child support last? Normally, the child support obligation stops when the child turns 18 or finishes high school, whichever is later. In other words, even if a child turns 18 during his senior year of high school, the child support continues until graduation. If a child is disabled and unable to work, child support can last indefinitely into adulthood.
In some cases, you can also ask for retroactive child support going back to the date of separation, but usually not more than 4 years.
An obligor is also often required to pay for health insurance and other medical expenses. This issues is addressed here.
Contact our San Antonio Child Support Lawyer Today
If you feel you are entitled to child support, or if you are being asked to pay child support, you want an experienced family law attorney to make sure your child support amount is set correctly, and at an amount that is right for you and for your children. There are many factors that go into determining child support, so it is important to have a full and thorough understanding of the law. The attorneys at Salmon Haas Law in San Antonio have worked on many child support cases, and are here to assist you.