In Texas, child support is most always owed by the parent who does not have primary custody of the child. How child support is owed is set by a statutorily based percentage to the owing party's net income (gross income minus social security taxes and federal income tax withholding). The Attorney General has a chart on their website which breaks down the numbers for those that are interested.
This chart, however, caps net income is less than $8,550. It's safe to say that most Texans earn less than this amount per month- which can present difficulties for families due to the cost of raising children. Setting aside the necessities like food, clothing, shelter and medical care- additional costs regarding extracurricular activities, athletics and recreational pursuits add to what is already a budget stretching situation for even middle class families.
Can a Court Deviate from Guideline Child Support?
Under section 154.122 of the Texas Family Code the application of guidelines child support is rebuttably presumed in best interest of child.
"(a) The amount of a periodic child support payment established by the child support guidelines in effect in this state at the time of the hearing is presumed to be reasonable, and an order of support conforming to the guidelines is presumed to be in the best interest of the child.
(b) A court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances."
A general statement can be made that courts do not typically show a willingness to go "above and beyond" the aforementioned guidelines for child support. For one child in Texas that means that 20 percent of a party's net income is due for child support if they are the non-primary parent. With that being said, a court can in appropriate situations adjust this amount based on the proven needs of a child. If the owing party shows an ability to pay additional amounts and a child is shown to have proven needs beyond what the statute holds then support above the guidelines may be in the offering.
What Factors does a court consider in determining whether to order above guideline child support?
The (not quite) million dollar question, then, is- what factors can a court consider in determining whether a child's proven needs necessitate a child support order above minimum guidelines? The statute in question can be found under Texas Family Code, section 154.123(a) and (b), state:
(a) The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.
(b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the support of the child;
(3) any financial resources available for the support of the child;
(4) the amount of time of possession of and access to a child;
(5) the amount of the obligee's net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
(6) child care expenses incurred by either party in order to maintain gainful employment;
(7) whether either party has the managing conservatorship or actual physical custody of another child;
(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
(9) the expenses for a son or daughter for education beyond secondary school;
(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
(12) provision for health care insurance and payment of uninsured medical expenses;
(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
(14) the cost of travel in order to exercise possession of and access to a child;
(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;
(16) debts or debt service assumed by either party; and
(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
If you are in a situation where child support is an issue, the attorneys with The Law Office of Bryan Fagan are well equipped to assist you in considering your individual circumstances and how to best handle them. Whether you are the parent who could potentially owe child support or you're the parent who may be owed child support, we can help prepare your case for a courtroom.
Case Law Regarding Above Guideline Child Support
The following are some relevant case regarding above guideline child support.
Matthews v. Northrup, No. 01-09-00063-CV, 2010 WL 2133910, at *3 (Tex. App. May 27, 2010)
After determining the amount of net resources, the trial court must decide whether to apply the child support guidelines or whether application of the guidelines would be unjust or inappropriate.
In this case one of the issues discussed by the court was whether or not the court should consider the value of a partnership interest when determining income. The court decided that a "partnership interest is like a retirement account which has value but that value is not accessible to the recipient until retirement.
The court further found that although the partnership interest was an asset that does not currently produce income the trial court acted within its discretion in assigning a reasonable amount of deemed income to to the partnership interest. Northrup, No. 01-09-00063-CV, 2010 WL 2133910, at *5 (Tex. App. May 27, 2010)
In Interest of R.L.R., No. 09-15-00449-CV, 2017 WL 4171318, at *3 (Tex. App. Sept. 21, 2017)
In this case Mother argued that Father failed to present sufficient evidence in the modification proceeding to justify the trial court's decision to discontinue the requirement that Father pay Mother for child support.
The Court considered the evidence presented at trial, including but not limited to the relevant factors under section 154.123 of the Texas Family Code. The Court found that this evidenced rebutted the presumption that the application of the guidelines to the calculation of child support.
In deciding to deviate from the child support guidelines, the trial court's written findings indicate that it considered the child's age and needs, the ability of the child's parents to support her, the financial resources available to the child's parents, the relative amounts of time that the child's parents would have possession of her under the terms of the modified possession order, the fact that, to maintain his employment, Father indicated that he would be required to pay for additional after-school activities during the school year, Mother's obligations that required her to care for two children who did not belong to Father, Father's obligation to provide health insurance for the child, and Father's testimony that he was the parent who was actually paying for the child's counseling.
In Interest of V.J.A.O., No. 05-15-01534-CV, 2017 WL 930025, at *1 (Tex. App. Mar. 9, 2017), review denied (Aug. 18, 2017)
In this case the the Appellate Court reviewed the trial court's judgment for an abuse of discretion in requiring the father to pay $5,000 monthly, an amount higher than standard guidelines would require, for support of the child.
Calculating Above-Guidelines Child Support
The court discussed that the Texas Family Code employs different analyses in setting child support, depending on whether an obligor has net monthly resources above or below $8550.
When the obligor's monthly net resources are less than $8550, then the code sets a presumptive award based on a percentage of those resources and the number of children to be supported. Under this scheme, the presumptive award for an obligor with one child would be 20% of his net resources. That award is presumed to be reasonable, and an order conforming to these guidelines is presumed to be in the best interest of the child.
However, the trial court may determine that application of the guidelines would be unjust or inappropriate in a particular case under section154.122(b). And the Code provides a list of seventeen factors that the trial court may consider when determining whether the best interest of the child justifies a variance from the presumptive award.
In this case, though, the trial court found that Father's statutory net resources exceeded $8,550 per month, and the parties do not dispute this finding. The statute governing calculation of support for an obligor who has more than $8,550 in monthly net resources begins:
"If the obligor's net resources exceed [$8550], the court shall presumptively apply the percentage guidelines to the portion of the obligor's net resources that does not exceed that amount. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child."
154.126(a) (emphasis added). This section 154.126(a) grants the trial court discretion to order additional amounts of support—over and above the presumptive award determined by the Code's guidelines—based on the income of the parties and the proven needs of the child.
The statute continues:
"The proper calculation of a child support order that exceeds [$8550] requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child."
Section 154.126(b) the mechanics of such a calculation:
- determine the “proven needs of the child”;
- subtract the presumptive award from the amount determined to be the proven needs of the child;
- allocate, according to the circumstances of the parties, the amount each will pay of the remaining amount that is necessary to meet the needs of the child.
- The court has discretion in this allocation so long as no obligor is required to pay more than 100% of the proven needs of the child
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- Texas Child Support Basics, Part Two
- Can my Texas Driver's License Be Suspended for Not paying Child Support?
- Child Support Modification in Texas (Part 1)
- What do I do if I have overpaid child support in Texas?
- Child Custody Basics in Texas
- Child Support and College Tuition in Texas
- Texas Child Support Appeals
- In Texas are Child Support and Visitation Connected?
- Texas Child Support – Trust and Annuities
- Special Needs Children in Texas Child Support Cases
- How to get above guideline child support.
Law Office of Bryan Fagan | Tomball, Texas Child Support Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding child support, it's important to speak with one of our Tomball, TX Child Support Lawyers right away to protect your rights.
Our child supportlawyers in Tomball TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles child supportcases in Tomball, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.