In our prior blog post I discussed how child support is calculated in Texas (based on net monthly income) and what counts as income. In this blog we will continue our discussion by outlining how serving time in prison can be construed to have been an intentional act of becoming unemployed as well as what situations can qualify a person to be responsible for paying beyond what the law in Texas requires them to owe in child support.
How being incarcerated can affect your child support obligation
If you are made to serve time in jail is it possible that the actions that led to your incarceration could also lead a family law court to rule that you intentionally became unemployed? It may surprise you to learn that this is possible. There are multiple courts in Texas that have refused to reduce a person’s child support obligation when the owing party was sent to prison.
The rationale behind not reducing the child support amount was that the act of the owing parent that caused him or her to end up in jail were intentional and that the persons owned other property that could be used to pay child support. These decisions were upheld by higher courts so it is reasonable to expect that if you are in a situation where you served time in jail that a similar decision could affect you.
Incarceration Does Not Automatically Stop Child Support
Some parents assume that child support automatically stops when they are in jail or prison. However, that is not the case. Something I tell parents who hire or consult with us is that the Order is the Order until a Judge signs a new Order.
This means until an order a parent petitions to modify the existing child support order, the parent will continue to be liable for the monthly amount due to child support.
How to Stop Child Support if a parent is Incarcerated
One thing you can do is file an Incarcerated Noncustodial Parent Affidavit of Income/Assets for a change in the court where the child support obligation was established. This brings the incarnated parents situation to the attention of the Texas Office of the Attorney General.
The Attorney General does not have the power to unilaterally modify a child support order. This power still rests with the Judge who made your current order. By filing this document the attorney general attorney general can file the necessary paperwork with the court. The Judge can decide whether to modify child support.
Filing a Modification to Stop Child Support on the Incarcerated Parent
A faster way to get things done is if the incarcerated individual, family member, or friend hires a private attorney to file the necessary documents with the court and to request a modification of the child support. The other parent will also have the opportunity to present their own case to the court.
How Deemed Income can affect your child support calculation
The concept of “deemed income” comes straight from the Texas Family Code. Here is the definition in full from section 154.067:
(a) When appropriate, in order to determine the net resources available for child support, the court may assign a reasonable amount of deemed income attributable to assets that do not currently produce income. The court shall also consider whether certain property that is not producing income can be liquidated without an unreasonable financial sacrifice because of cyclical or other market conditions. If there is no effective market for the property, the carrying costs of such an investment, including property taxes and note payments, shall be offset against the income attributed to the property.
(b) The court may assign a reasonable amount of deemed income to income-producing assets that a party has voluntarily transferred or on which earnings have intentionally been reduced.”
Let’s unpack that definition a little further here. While many sources of income for the calculation of child support are straightforward, a few that we are about to discuss are not for most people. That’s why I think it’s important to go over them in case you find yourself in a position where this information is relevant.
Real Estate Partnership:
The key for our purposes is whether or not an asset that has not yet produced income could be counted among those other sources of income that are currently yielding dividends for a person who owes child support.
A recent decision from an appellate court in Houston has found that real estate partnerships, even ones where income has not yet been derived, can be counted as a source of income for the purposes of calculating child support.
This is an example that I can speak to based on experience. If you have a job where “perks” such as use of a company car, paid for car insurance, or expense accounts are at your disposal then be prepared for these benefits to be used as a way for your spouse to potentially have your income inflated for the purposes of child support calculations.
Even though these benefits are more or less a few items that are not paid to you in cash, they will likely be considered to be income when a child support determination is being worked.
A court in Texas has taken expenses paid by a person for gas, maintenance of machines, transportation, travel expenses, and other costs associated with running his business as being income for child support calculation purposes. You can remove these items from your income but it is possible for a judge to add them back into your total income.
How are courts justified in awarding child support amounts over and above the guideline figures?
Despite the presumption that an award of child support in line with the Texas Family Code guideline amounts is in the best interest of your children, if there is evidence that justifies an award over and above the guidelines level of support a court may decide to order such a level of support.
If your spouse is able to convince a judge that awarding a standard amount of child support is not in the best interests of your child then the court can go in a different direction and award support above the statutory percentages. After the best interests of the child are considered a court will take a look at whether or not you earn more than $8,550 which is the most amount of monthly income that a court is able to consider when setting a child support obligation.
If you earn less than $8,550 it is unlikely that a court would order you to pay more than the statutory amount of child support based on your specific net monthly income and your specific number of children. If your income is more than $8,550 per month then it is more likely that you will be made to pay higher than guidelines child support if such an award is justified based on the proven needs of your child.
Child Support Questions? Contact the Law Office of Bryan Fagan, PLLC
If you have questions about your particular situation as it pertains to child support or family law in general please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week where your questions can be answered by a licensed family law attorney. Our office represents clients across southeast Texas and we would be honored to do the same for you and your family.
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
- 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, PLLC | Tomball, Texas Child Support Lawyers
The Law Office of Bryan Fagan, PLLC 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC 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.