Texas Child Support

Texas Child Support Laws

Laws on Late Child Support


Question: If I owe child support, can I get a passport?

Answer: If a person ordered to pay child support has an arrearage, the US State Department will not issue or renew the passport, depending on the amount owed. The gatekeeper on this matter is the US State Department. In order to obtain a passport, you must meet the requirements of the US State Department.

The easiest way to address this issue is to pay off any child support arrearage, so that then the child support becomes a non-issue.

Child support is considered a unique obligation and its collection is subject to a long statute of limitations. However, the law now requires that a child support collection action must be filed no later than the tenth anniversary of the child’s graduation from high school. Then, if a judgment is granted, it may be collected as any judgment. In addition, reporting a child support arrearage that is existing does not violate any Fair Debt Collection Act. Payment of arrearage may be negotiated. You may need to have the amount of child support due determined by a court. This is accomplished with a Motion to Determine Arrearage.

Question: How long may child support arrearages be enforced by Contempt?

Answer: A person owing child support may be put in jail for contempt of court for failure to pay child support. A party seeking such relief from the court may do so up to two years after the child becomes an adult or the child support obligation terminates. The old rule only allowed this relief for six months after the child emancipated.

Question: Is there a maximum child support figure in Texas?

Answer: The presumptive maximum child support is calculated on net resources of $7500.00 per month upon which to apply the guideline child support calculation. In order to exceed the presumptive maximum net resources calculation on amounts that exceed the $7500.00 per month, you would have to show that the actual needs of the child exceed the guideline child support. In other words, if dad has net resources of $15,000.00 per month, the actual needs of one child, for example, would have to be proven and exceed the presumed figure of $1500.00 (20% of $7500) in order for the court to award more than the $1500.00 per month in child support. It is difficult to do so in Dallas area counties. Texas Family Code 154.125, 154.126, effective September 1, 2007.

Question: How is child support calculated in Texas?

Answer: The monthly resources of the person paying support are used to determine child support. Calculations are made by taking the gross pay and subtracting taxes withheld and insurance coverage for the child(ren) only. Then the net resources are multiplied by a percentage depending on the number of children involved. For example, if the net resources were $3000/mn. and there are 2 children, 25% of the $3000/mn resulting is a figure of $750 for child support.

Question: How long is child support paid?

Answer: Child support is an obligation set by the terms of your order. The usual case is that child support is paid until the 18th birthday of the child, or graduation, whichever is later. Texas Family Code Section 154.002.

Question: Is a step-parent’s income included in child support calculations?

Answer: Step-parents have no obligation of support for the kids of the other spouse from a previous relationship. In other words, the Texas Family Code 154.069 actually prohibits the use of step-parent income in the obligor spouse’s child support calculation.

Question: If the child’s mom won’t let me see the baby, I don’t have to pay child support, right?

Answer: On the issue of child support, that is a separate obligation of yours, unattached to your ex-wife’s obligation to allow visitation. You may be held in contempt of the order, fined, possibly jailed and be ordered to pay attorney’s fees. Courts in the Dallas area have little tolerance for failure to pay child support just because you choose not to. Refusal of visitation is not a valid reason to fail to pay court ordered child support. If she is refusing visitation and you are not paying child support, the court can hold you both in contempt.

Question: Can the other parent refuse visitation because I am behind on child support?

Answer: The short answer is No. Your duty to pay child support is not at all related to the other parent’s duty to surrender the children according to the order in place. You both may be in violation of your orders.

You should appear at the appropriate place to collect the children for visitation. Make notes on a calendar. Pay your child support; because when you take the other parent to court over lost time with your kids, you will have to address the child support as well.

Question: I just found out I have a child. Can I just sign over my rights and avoid child support?

Answer: It is very unlikely that “signing over your rights” would be approved by the court. The issue you bring up is the termination of the father’s parental rights. Dallas area judges are quite reluctant to allow a termination of your rights unless someone is also seeking adoption of the child. It is more likely that the paternity of the child would be established at this time. Texas law recognizes that children have a right to know their parents, and vice versa.

Question: Can my wages be garnished to pay my child support?

Answer: Under Texas law, all child support orders must provide for witholding from the obligor (paying) parent’s salary or wages. However, mandatory witholding is not required if good cause is shown or if the parties agree that there shall not be withholding.

Question: What if I overpaid on my child support?

Answer: You probably need to file a Motion To Declare Child Support Obligation Fulfilled, also requesting that the court determine any overpayment. The current order probably states the arrearage amount at a particular time. Then you may request an order for reimbursement from the overpaid parent, with terms for your repayment.

Question: What is a child support offset calculation?

Answer: We should check the math of an offset calculation of child support. For example, in a situation where each parent has custody of two children of the marriage about 50% of the time, the court often looks at what child support one parent would pay for two kids based on that income, and what the other parent would pay for two kids on the other income. Then, you look at the difference, and the person who makes more money pays the difference. Sometimes it works out to be a wash, and no child support is ordered.

Question: Under what circumstances can a parent’s child support obligation be modified?

Answer: The court may modify an order that provides for child support if the circumstances of the child, or the parent paying support, have materially and substantially changed. Texas Family Code 156.401 (a)(1).

The way to address this issue is to file a Motion to Modify the child support payment. A parent has a monthly court ordered obligation to pay support that continues to accrue unless the order is changed. In fact, the court has the discretion to retroactively reduce the child support obligation back to the date of filing or when the parent receiving support is given notice. So for example, in the case of a job loss, a Motion to Modify child support should be filed as soon as possible.

Question: What remedy is available if a final child support order is violated?

Answer: There are various approaches to bring violations of an order to the attention of the court. The most harsh remedy for violation of a final order of the court would be technically a contempt action, which is a separate lawsuit, involving filing fees, new service upon the parent in violation of the order, etc. Because contempt actions involve a quasi-criminal situation, meaning that if the person sued is found in contempt of a civil order, they risk suffering incarceration and fines, and the person sued may choose to remain silent.

Another approach to inform the court that child support is unpaid would be through a Motion to Determine Arrearage. This is also a new action requiring filing fees and new service on the Respondent. Additionally, attorneys’ fees may be sought, along with other more creative remedies, which could be tailored to the circumstances of your case. Finally, since jail is not a potential sanction under this option, the person sued may NOT remain silent. In other words, the court can compel answers to questions asked at the hearing.

Question: How frequently can child support be modified?

Answer: The Texas Family Code generally requires that child support would change by 20% or $100.00 per month to constitute a material change of circumstance AND it has been three years since the last order regarding child support. Texas Family Code section 156.401.

However, if a person ordered to pay child support were to lose a job, that would be a material and substantial change in circumstances that would presumably support a child support change. See the same statute above.

Another such change would be the move of the child’s residence from one conservator to another.

Question: How long can a child support arrearage be collected?

Answer: Child support is considered a unique obligation and its collection may be commenced no later than the tenth anniversary of the child’s graduation from high school. Then when a judgment for child support is obtained, it is subject to regular rules for the length of time for collections of debts. In addition, reporting a child support arrearage that exists does not violate any Fair Debt Collection Act. Payment of arrearage may be negotiated.

Question: Can a parent “sign over their rights” to avoid paying a child support arrearage?

Answer: The issue you bring up is the termination of the father’s parental rights. Dallas area judges are unlikely to allow a termination under these circumstances. It is more likely that the child support arrearage would be established at this time.

Question: Does the calculation for child support take into account my new children born after a child support order?

Answer: Child support in Texas is calculated on the net resources of the person paying the support (the “obligor”), taking into account the cost of health insurance and how many children the obligor has a duty to support. For example, as in your case, if there are two children, and there is a third child now in the obligor’s household, for whom there is a duty to support, the calculation is 22.50% of the net resources for the support of the first two children. This is a reduction from the 25% that would be paid for the two children in the absence of the third child in a different household. There may be other factors that should be considered.

The way to address this issue is to file a Motion to Modify to reduce the child support payment.

Question: What is the child support calculation if I need to pay child support for two children, but I have a new baby at home?

Answer: Child support in Texas is calculated on the net resources of the person paying the support (the “obligor”), taking into account the cost of health insurance and how many children the obligor has a duty to support. For example, if there are two children, and he has a third child for whom he has a duty to support living with him, the calculation is 22.50% of the net resources. There are other factors that may need to be considered.

Question: Can I ask the court to go back and recalculate child support based on past income increases?

Answer: Any child support ordered in the past by the court cannot be recalculated, based on any past increase in the earning capacity of the obligor, the person paying support. However, you may ask the court to modify the child support obligation by increasing it now based on current income for future child support payments.

Question: The other parent was ordered to pay child support and has underpaid. How do I figure out how much back child support is owed?

Answer: You probably need to file a Motion to Determine Arrearage. The order we obtain will state the arrearage amount at a particular time and the balance will begin accruing interest at the statutory rate of 6% simple interest annually.

Question: How do I collect back child support owed?

Answer:  You probably need to file a Motion to Determine Arrearage. In the context of this lawsuit, you may contact the other parent to work out a payment plan. If you have been on public assistance, then the state will seek reimbursement from the parent who failed to pay child support. The court will approve any agreement the two of you make, as long as the state is not owed money for public assistance. Child support is considered a unique obligation and its collection is subject to a longer statute of limitations. Specifically, the court retains jurisdiction to confirm child support arrearages for ten years after the child becomes an adult, or the date the child support obligation terminates. Texas Family Code §157.005 (b).

Then, after a court has determined any arrearage and reduced that finding to a judgment, the court has continuing jurisdiction to enforce its order, “until all current support and medical support and child support arrearages, including interest and any applicable fees and costs, have been paid”.Texas Family Code §157.269. And that is NOT limited to a particular time frame.

You should file a Motion to Determine Arrearage to request that you be awarded a judgment for the full amount of past child support owed, plus interest, and request that the parent paying child support address the arrearage in a larger amount payable per month. It is often the case that the child has graduated from high school, child support is owed, and the parent owing the child support now makes more money. Consequently, the paying parent should be able to afford higher monthly payments.

Question: Does filing bankruptcy stop any hearing about child support in family court?

Answer: The short answer is no. Bankruptcy does not affect any court hearing regarding child support in family court: setting it, collecting it, or enforcing an order about it. Therefore, if you are sued, with a request that you be held in contempt of court for failing to pay child support, the court may go forward with the hearing even if you file bankruptcy. Child support is considered to be a special obligation and not merely a debt. In contrast, any other litigation regarding settlement or collection of debts are stopped cold by bankruptcy.

Question: I have been ordered to pay child support and have lost my job. What do I do?

Answer: If a person ordered to pay child support were to lose a job, that would be a material and substantial change in circumstances. Texas Family Code 156.401 (a)(1). The way to address this issue is to file a Motion to Modify to reduce the child support payment. You have a monthly court ordered obligation that continues to accrue unless the order is changed. In fact, the court has the discretion to retroactively reduce the child support obligation back to the date of filing or when mom is given notice, so you want that to be as soon as possible.

Question: I was ordered to pay child support, but the child is now living with me. Do I still owe current child support?

Answer: The short answer is probably not, as to current child support. If a person ordered to pay child support were to then have the child for whom support was ordered living in his house, then he would have a defense to the child support obligation. In other words, since the point of child support is to provide housing and groceries for the child, if dad (for example) were providing housing and groceries for the child, then he has already discharged his child support obligation.

Question: The father of our child and I are now living together again. How do I stop court ordered child support?

Answer: If a person ordered to pay child support were to then have the child for whom support was ordered living in his house, then he would have a defense to the child support obligation. In other words, since the point of child support is to provide housing and groceries for the child, if you and dad now live together and are providing housing and groceries for the child, then he technically does not owe child support.

The problem comes in when the child support is withheld from the obligor’s paycheck. The order for child support probably has language describing that child support ends if you marry. So you could show the employer the marriage certificate and the order, and that might be enough. If the employer is not comfortable with that-because the employer is ORDERED to withhold child support, then a Motion to Modify Child Support will be necessary.

Question: I know the other parent made more income after we went to court the last time. Can I ask the court to go back and recalculate child support based on past income increases?

Answer: The child support that was ordered at the time you went to court previously cannot be recalculated, based on any past increase in the earning capacity of the obligor, the person paying support.

Question: What if the person paying child support is in jail?

Answer: For incarcerated individuals, the ruling with regard to child support depends on the judge of the court. Some judges rule that the person in jail cannot work, and thus should pay child support upon release. Other judges believe the actions of the person in jail put them there, and so they should be obligated for child support for the entire time behind bars.

If the person went to jail after child support was already ordered, then he should file a motion to modify the child support based on his change of circumstances. This is the case because this parent is obligated under the existing order until that order is modified.

Question: Do the special needs of my child effect the child support calculation?

Answer: If you have a special needs child the court should be made aware of the costs involved. In your child’s situation, the more time the child is with you, the more it costs you in time and money. In addition, if the actual needs of the child exceed guideline child support, the court has the discretion to order child support in excess of the guideline.

Question: The other parent is late reimbursing me for uninsured medical expenses. How do I collect them?

Answer:  Health insurance and payment of uninsured expenses are considered to be additional child support in Texas. In theory, the parent who pays for uninsured medical expenses (like copays, prescriptions, and deductibles) is supposed to send those receipts to the other parent in a timely fashion, usually within 30 days. If the receipts are provided too late, the court may not make the other parent pay. Since the math is determined according to the discretion of the court, it can be expensive to get the answer. I generally suggest that the order require the sending of unreimbursed medical receipts EVERY month on the 15th of the month. That way, it is predictable, and the saving up of receipts is discouraged.

The mechanism to determine the outstanding medical expenses, and who pays them is a Motion to Determine, which is very similar to a Motion to Determine Arrearage.

Question: How do I address my child support arrearage? How much interest does it accrue?

Answer: You should file a Motion to Determine Arrearage, and work out a settlement with the other parent. This way, while your credibility with the court is great, you can address the math, make sure payments have been applied correctly, and obtain credit for other things you have paid for the benefit of the child.

Note: All of your payments since the last child emancipated/graduated from high school have been applied first to interest, then to principal. The interest amount on any arrearage before January 1, 2002 was 12%. All arrearage accrued since then bears interest at 6%. See Texas Family Code 157.265.

Question: If I have a Texas child support order, but all parties and the child have moved to another state, what should happen to move the case
to the new state?

Answer: Since everybody is in the other state, maybe you domesticate the Texas order there, and file a motion to determine arrrearage, and determine that it is “x” or zero, whatever you can work out with the other parent. Then, the other state has jurisdiction, not Texas. Since I practice in the North Texas area, meaning Dallas and area counties, you should contact an attorney in your county. The best way to do that is to contact the local county bar association or the State Bar of your state and ask for a referral to a family law attorney.