In the world of family law very little is formulaic. So much of what your attorney will be assisting you with is taking your specific circumstances and helping you to apply the law in a manner that is most favorable to you and your children. It’s not as if your attorney can look at your case the first day you sign up with him or her, plan a roadmap for your case and then set the course to autopilot. Family law cases are always changing and always require adaptation as time progresses.
The one area of a family law case that I would say goes against this line of thought is regarding child support. In terms of going by the book and using a formula, no other area of family law is as straightforward. Instead of coming up with creative arguments to take into consideration difficult and complex facts, your attorney will be advising you and the court of child support calculations that are taken straight out of the Texas Family Code. There are numerous websites and apps for your cell phone that can largely do these simple calculations in the blink of an eye.
While the need for you and your attorney to sit with pen and paper in order to calculate the correct amount of child support that you should either be paying or receiving (depending on your circumstances) are over, there is still a great amount of work that can be done in relation to child support that can either improve your case and the future finances of your family. This work begins with the presumption that the guidelines level of child support as outlined in the Texas Family Code is in the best interests of your child to be established in your family law case.
A judge always can either increase or decrease the amount of child support paid/received in any given family law case depending on the circumstances. If awarding you a guidelines level of support is inappropriate for some reason a judge can make adjustments based on evidence. By the same token, if you and your attorney can effectively communicate those circumstances to your opposing party it is possible for you to be able to negotiate for an above guidelines level of child support.
What evidence would a judge look for when deciding whether to award higher than guidelines child support?
A judge would look at your child’s age and their specific needs, the ability of your opposing parent to pay above guidelines child support and what resources are available to help pay child support for your child. Additionally, your ability to earn an income and contribute to the support of your child will be considered along with any childcare expenses that you would need to incur to work. Finally, special circumstances regarding health care, education or other costs that are expected to be necessary to care for your child will also be looked to.
I’ve listed for you a fairly wide range of circumstances that a judge could look to when it comes to awarding child support above the guidelines outlined in the Texas Family Code. However, these are just a few of the many circumstances that could lead to the judge awarding you a higher than guidelines level of child support. My purpose in mentioning these circumstances was just to use them as a logical place to begin our discussion.
Essentially, the proven needs of your child as established over time and the best interests of your child will be what the court will be looked at when determining how much child support will be ordered in your case. Your attorney will need to work with you to establish what needs to be made known to the judge in your case. Does your child have tutoring costs, summer camps, private lessons for the violin or other costs that have been in place for some time?
These are the type of costs and bills that will be considered when the proven needs of your child are considered. When you can establish the proven needs of your child then you will be able to assess whether or not you have a chance to be awarded a higher than guidelines level of child support. Here is where having an experienced family law attorney will come in handy for you. Even though you can find a website to do the basic child support calculations in your case, you will not be able to find one that will do this sort of work for you.
Can you be awarded higher than guidelines child support if your opposing party isn’t rich?
It’s possible that you could be awarded child support that is higher than the guidelines amount as outlined in the Texas Family Code even if your opposing parent is not wealthy. For instance, if you are a student and you and your child are living with your parents then it is possible that due to your not having an income, a judge could order your opposing parent to pay whatever child support level is justified to care for your child while you are in school and living with your parents.
Even if your opposing parent in the above scenario doesn’t earn a great deal of income, if he or she has a trust, inheritance or another source of money then those resources would be available for the calculation of child support. If your opposing parent is also largely an absentee parent- not spending much time with your child at all during the year- then this could put a further burden on him or her to pay for costs that you would incur about your child. The thought is that if your opposing parent spent more time with your child that he or she would be paying for more things related to him or her.
What happens if your opposing parent not only doesn’t earn a lot of money but doesn’t earn much income at all? If he or she works at a minimum wage type job and you are not working due to your being enrolled in college courses then do you stand any chance of a successful result when you ask for a higher than guidelines level of child support to be awarded?
Even if your opposing parent is not working and is not able to present any evidence regarding income, the court will assume a baseline level of child support that is equivalent to the amount that he or she would pay based on having earned minimum wages forty hours per week. If your ex-spouse is in jail currently and not earning an income of any sort, that would not necessarily make it impossible for the court to assume child support based on the aforementioned minimum wage standard.
The reason being is that the Family Code allows judges to consider the totality of the circumstances surrounding your child to arrive at a proper amount of child support. If it would be inappropriate to award a guidelines level of child support then it will consider an increased amount even if your opposing party is not working or is working a job where he or she earns a relatively low wage.
What chance would your opposing party have of appealing a child support decision issued by a judge?
It is possible that after your divorce or child custody case has ended that your opposing party will appeal the decision regarding the amount of child support assessed against him or her. It is difficult to be successful in this type of case, however. Essentially, what an appellate court would need to find to reverse the award of child support from the trial court would be that the judge was acting without reference to any guiding rules and principles in arriving at their decision for child support.
What you and your attorney need to focus on is what needs does your child have that might otherwise be thought of as out of the ordinary or unexpected for a judge to consider. This is what you would need to focus on in a trial to encourage and persuade a judge to order child support to be paid over and above the guidelines amount outlined in the Texas Family Code.
You can assist your attorney in beginning to formulate a strategy to attack this issue by providing diary entries, calendars, social media posts, photographs, videos and other potential pieces of evidence that may be useful to either show the resources of your opposing party to pay child support and the needs of your child that have been proven over a period of time. You have a great deal to lose in this scenario if you cannot show that your child has proven needs that go beyond what is proscribed for child support in the codebook.
How will a court divide the costs of raising your child between you and your opposing party?
In many child support trials, you will be put on the witness stand to testify regarding the needs of your child in relation to their share of your total household expenses, the costs associated with tutoring your child (if necessary), school lunches, car insurance, braces for their teeth, music lessons and other activities that have been in place for your child over a long period of time.
What a court would be expected to do in this type of situation is to subtract the presumed amount of support that would be required by the guidelines, absent the aforementioned circumstances. You will need to make some effort to bring evidence to the court that will back up your assertions about the need for you to pay for costs that are over and above the typical, guidelines level of child support.
Family budgets, spreadsheets, itemized lists of your child’s expenses and other black and white examples of the costs that you incur on behalf of your child would be a great place for you and your attorney to start your analysis. Keep in mind that if you are not able to separate your child’s costs and the costs of your household that would be in place regardless of whether or not your child is living with you then you will likely not be as successful in your presentation.
What about modifying a child support amount that is over and above the child support guidelines?
You may not be in the middle of your first child support case. On the contrary, you may have a child support order already in place and may need a modification of that amount. The last thing that you wanted years ago when you were in court was to ever go back but now the circumstances of you, your child or your ex-spouse have changed. Can you go back and request that the judge increase the amount of child support that you receive every month?
In the meantime, if you have any questions about the material that we shared with you today then I would recommend that you contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to schedule a free of charge consultation with you here in our office. These consultations are a great opportunity to meet with an experienced attorney and to receive feedback about your particular circumstances.
Our attorneys and staff take a great deal of pride in being able to provide representation for clients across southeast Texas. Our clients’ interests are what we are most concerned with and we work tirelessly to advocate and fight for your rights inside and outside of the courtrooms of our State.