In Texas, parents have a duty to care for and provide for the well being of their children. A parent can fulfill these obligations in many different ways but perhaps none more obvious than in paying towards their expenses. Think of the day to day costs that surround a child- clothes, food, air/heat, rent/mortgage, medical insurance, etc. These are the costs that previously you and your spouse shared in since you lived in the same house and had equal access to your kids in the family home.
Now that you have moved towards a divorce from your spouse you may be curious about how child support works. You have heard stories from friends and co-workers who have gone through their own divorces and have heard mixed impressions about the responsibilities that you carry if it is ordered that you pay child support. While you are not thrilled about the idea of money being taken out of your paycheck automatically to be paid directly to your ex-wife, you are fine with it if only because that money will go to support your kids.
In a perfect world you would want to split custody 50/50 with your wife. After all- you are an active and involved father who has every right to want to spend as much time with your kids as you can. While you may not be able to take on the primary conservatorship role from your ex-spouse, a simple split right down the middle would work great for you. Equal time, equal parenting responsibilities and theoretically equal costs associated with raising the kids.
Wouldn’t it be fair for you to not have to pay any child support? Since you would be with the kids as much as your ex-spouse, a 50/50 split would do away with the need to pay any child support, wouldn’t it? Seems reasonable enough to you so you go in to ask a family law attorney about the situation. A family law attorney at the Law Office of Bryan Fagan would be likely to tell you the following about how child support and 50/50 possession of you kids relate to one another.
Guideline amounts of child support are probably not appropriate for your circumstances
Let’s assume that you and your spouse have agreed to a 50/50 split in custody (or as close to that as you can get). From there, we would need to consider whether or not the Texas Family Code guidelines on child support are appropriate for your circumstances, or not. The standard possession order that most non custodial parents get in a Texas divorce assume that you will have possession of your kids around 45% of the time. That 10% gap between you and your spouse is the difference in why child support is necessary.
Is it appropriate for child support to be ordered at all when you and your spouse pretty much share custody time right down the middle? To start off with, both you and your spouse have a duty to support your child. Your spouse would be more likely to incur costs for your child under a standard possession order due to her having the kids much more time during the year. If you think about costs during the school year versus in the summer, costs are much more likely to be higher during the school year when your spouse has them for a majority of the time.
Those expenses would the costs that your spouse incurs in order to raise the kids. Theoretically she would incur more of those costs than you would. This, as the family code believes, is not fair. As a result, you would be ordered to pay child support to your ex-spouse in order to even the playing field so to speak. While we are discussing this subject, no, you cannot force your ex-spouse to disclose how she is spending that money and you cannot somehow pay the money to your children directly. The law says that these payments are to be paid from you to your ex-spouse with no middlemen- especially not your kids.
In addition to child support, you would be responsible for paying your child’s health insurance costs as well. These costs can be borne out in several different ways. First, you could simply put your child on your workplace provided plan and go from there. You could also purchase a plan on the open market for your child or go through the Obamacare marketplace. If that isn’t the best option you could be ordered to reimburse your ex-spouse for placing the child on her health insurance through work. Finally, if neither you or your ex-spouse can find an option for health insurance you would be ordered to reimburse the state of Texas for the costs to place your child on Medicaid.
What would likely happen if you had 50/50 custody of your child?
Hopefully now you can see what you would be in line for in a typical divorce where you were assigned a standard possession order and statutory child support levels. However, we have already established that in your case you have a 50/50 split in custody. The reality is that there isn’t anything specific in the family code that says how to proceed on child support when you split custody in this fashion. That is typical when it comes to the family laws in Texas- judges and more importantly the parties themselves, are given a wide amount of latitude to make decisions on what is in the best interest of the kids involved.
As such, in order to lower your child support obligation from the guideline levels of support stated in the Texas Family Code to nothing, you would need to figure out a way to negotiate that with your spouse. The default setting is guideline child support. Keep this in mind as you go through negotiations. However, you have the ability to negate the judge’s impact on your case by agreeing in mediation on how to have child support paid- or not paid at all.
What I can tell you is that a judge would need to agree with you all that whatever is decided as far as child support is in the best interests of your children. Now, that is a decision that requires a lot of consideration of your individual facts and circumstances. Generally speaking a judge will defer to the parents when it comes to make decisions for kids because nobody knows your child and your family like you two do.
The nice part of settling the issue of child support in mediation is that you never have to leave the question up to the judge. The main benefit of mediation is that you and your spouse have the ability to work with each other and negotiate on an outcome that is best for all parties involved, including your child. When you go to court not only are you paying for the privilege to do so (in terms of both time and money) but you are also risking a decision from the judge that doesn’t make either you or your spouse satisfied.
What are your choices when negotiating for child support in a 50/50 custody situation?
As I have already mentioned, deciding how to handle this question in mediation is your best bet. Maybe you agree on no set amount of child support but opt to have either you or your spouse pay the costs of daycare or childcare on rotating basis. Or, maybe you realize that due to your ability to earn a much greater income than your wife that you should pay her some amount of money in child support in order to even up the score to an extent.
Another option that you may want to consider if splitting the difference in child support. Here is what I mean. You would calculate what you would stand to pay in guideline child support to your wife and what she would pay to you. Whatever the difference is, the higher earning spouse would pay that in support to the lower earning spouse. This would get you all as close to possible to be on the same footing on monthly support. Of course, you cannot accurately predict exactly the costs that each of you will bear over time but this option does offer something for your spouses while minimizing costs for you.
The other option that some people choose is, when you have also agreed to pay contractual alimony to your spouse, that you would offset the costs associated with that payment by paying little to no child support. Meaning: whatever you would have paid in child support, you would simply pay a little more in contractual alimony each month in order to make up the difference.
Let’s talk briefly about the two most likely options that you would be interested in: negotiating a specific amount of child support with your spouse in mediation or splitting the difference in your respective child support obligations. That will allow us to more thoroughly examine each option so you can begin to figure out which, if any, option suits you the best.
Agreeing in mediation to some amount of child support
You have the ability to agree to pay child support equal to 20% of your net monthly income towards the support of your child. This is what the Texas Family Code says you should pay for one child based on their guideline levels of support. Due to the nature of your 50/50 split you may decide that since expenses are shared equally that this level of support is unnecessary. As long as both you and your spouse earn about the same amount of money then there should be no problem as far as this is concerned. As long as your spouse can run their household without additional assistance from you, there is a good chance that you could pay a reduced level of child support. Or, none at all.
Splitting the difference in child support and then paying that amount
If you have equal parenting time as compared to your spouse you should be able to split the difference, so to speak, when it comes to paying child support. Let’s walk through an example to show how this would work
Suppose that you alternate weeks of possession with your ex-spouse where you have your son for one week and your spouse has him for another week. This works out to a 50/50 split in time. What you could decide to do is to calculate what 20% of your net monthly income is and what 20% of your spouse’s net monthly income is to arrive at what the difference is. So, if you are to pay $1000 per month in child support and your spouse is to pay $800, you would take the difference between those two numbers and pay your spouse a monthly amount of child support of $200.
Final thoughts on 50/50 custody and child support
As long as you have arrived at a figure for child support that is in the best interests of your child and is contained within a mediated settlement agreement it is likely that the amount of money would be approved by a judge. It doesn’t matter if the judge disagrees with it- your judgment would rule over his. Of course, the amount of child support can be modified down the line if your circumstances change. However, for now, just know that if you and your spouse agree in mediation to no child support that is likely what will become your marching orders at the conclusion of your case.
If you have any questions about custody or child support in a divorce case please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you free of charge. In a consultation you can ask questions and receive direct feedback about your particular circumstances.