Saturday, April 3, 2010

Child Support - Part 2 of 5 Top Issues in Divorce

This series explores the top five issues that most people must work through
when obtaining a divorce in Texas.

#2 - Child Support

Child support is one of the most contentious issues in divorce. Because of the high level of conflict that often arises in deciding child support issues such as who should pay and how much should they pay, the law in this area is well developed.

In most cases, child support is calculated according to guidelines set up by the state legislature. When the Court orders a parent to pay child support in accordance with these guidelines, it is called "guideline support." In Texas, the guidelines supplied by the legislature supersede any local court guidelines or rules. (Legislative guidelines supersede court guidelines)

Computing Guideline Support
The exact formula is complicated but you can estimate guideline support as follows:

Net Resources = Monthly Gross Income
                         less Federal Income taxes (single, one deduction)
                         less Union Dues
                         less Medicare and Social Security Taxes
                         less Insurance premiums paid for children
(Computation of net resources for child support)

Support Factor

          Number of
           Children               Support Factor
               1                              20%
               2                              25%
               3                              30%
               4                              35%
Guideline Child Support = Net Resources   X   Support Factor

How Long is Child Support Paid?
Child support is paid as long as the minor child is under the age of 18 or still in high school, whichever is longer. If the child dies, gets married, joins the armed services, or begins to live on his or her own as an emancipated minor, child support is no longer payable. (Payment of child support through high school) (Events ending support obligation) (Termination of duty of support)

If the spouse that is receiving child support (the OBLIGEE) dies, child support is still paid by the other parent (the OBLIGOR). (Child support after obligee dies)

If the obligor parent (the parent paying child support) dies while child support is still payable, your divorce decree should state that the duty support continues as an obligation of the estate of the obligor. A well-drafted decree will specify that child support is an obligation of the obligor's estate. The court may also order the obligor to purchase and maintain life insurance as a guarantee of support in the event the obligor dies. (Child Support Life Insurance) (Child support as an obligation of obligor's estate)

Child support can be paid for a longer period of time if the child is handicapped and needs support for a longer period. The parents can also agree that child support will be paid for a longer time, even without a court order, but agreed child support is enforced by the Court differently. (Child Support for Child with Disabilities) (Child support agreements)

Step Down Provisions
If you have more than one child, the amount of child support will change over time. For example, if you have two children, the obligor parent will most likely pay 25% of his or her net resources as child support. When the first child graduates from high school (or child support is no longer payable for that child for another reason), the obligor parent would start paying 20% of his or her net resources as child support. (Partial termination of child support obligation)

Child Support Above and Below Guidlines
If a child's provable needs are greater than can be met by guideline support, the child may be entitled to greater than guideline support. Examples of circumstances that might result in provable needs being greater than guideline support are special healthcare or educational needs of a child. (Child support above guideline support) (Deviating from support guidelines)

Some parents agree to a possession and access order that either splits the children between the two parents (e.g. son lives with dad, daughter lives with mom) or provides for almost equal time between the two parents on a week-on/week-off basis. In these situations, the parents can agree that each would pay guideline support for one child to the other parent, with the net actually being paid as cash support. (Child support agreements)

For example, suppose mom has net resources of $5,000/month, dad has net resources of $4,000/month, and that they have two children. If guideline support was appropriate, mom would have a support obligation of $1,000/month while dad's would be $800/month. The difference is $200/month, so mom (the higher wage earner) would pay dad child support of $200/month.

How Is Child Support Collected?
When the Court orders child support, it will also sign a wage-withholding order. The wage withholding order can be filed with the obligor's employer so that child support is directly deducted from the obligor's paycheck. Sometimes divorcing spouses agree that the wage withholding order will not be sent to the obligor's employer UNLESS and until the obligor gets behind on his or her child support payments. (Wage withholding order) (Suspending wage withholding)

Whether you are the obligor (person paying support) or the obligee (person receiving support), you should insist that all support payments be made directly through the State Child Support Disbursement Unit or a local support registry. If you are the obligor, this protects you in the event that you make your full payments on time but your ex-spouse claims not to have received them. If you are the obligee, this protects you in situations where you have not received support payments but the obligee insists he or she has made the payment. The state disbursement unit acts as an impartial intermediary that records each payment received from an obligor and each payment sent to an obligee. (Child Support payments through state disbursement agency) (Child support payments through local registry)

If you are an obligor, you need to understand that INFORMAL PAYMENTS DO NOT COUNT. If you hand your ex-spouse some cash instead of making your payment through the disbursemenet unit, that cash is simply a gift to the ex-spouse and will not be credited against your support obligation. DO NOT MAKE INFORMAL PAYMENTS OF CHILD SUPPORT. (Informal payments of child support)

Although you should never make informal payments of child support, you can make payments greater than those ordered by the court. An obligor might do this to pay for camps, school supplies, or simply to provide more financial support when it is needed. If you make child support payment above the amount ordered by the court, you must indicate on the payment what you want the disbursement unit to do with the excess amount. If you don't tell them what to do with it, they will refund it to you. (Child support payments in excess of ordered amount)

However, if you make a child support payment through the disbursement agency AFTER your support obligation has terminated and you are not in arrears, the agency must refund your payment. (Child support payments after obligation has expired)

What if the Obligor Does Not Pay?
Sometimes obligor's do not make the child support payments they have been ordered to make. If you are the obligee, you have two choices for enforcing the child support order.

First, you can contact the attorney who handled your divorce (or any other family law attorney) and ask them to sue your ex-spouse for enforcement. This is the quickest way to enforce a child support order, but you will have to pay some legal fees and court costs. You may be able to recover these from the non-paying obligor, but you should not count on that outcome.

Second, you can contact the Office of Attorney General Child Support Unit and ask them to enforce the order. They will do so at no cost to you, but that process can be extremely slow due to the huge number of cases the OAG's office handles.

So if you are in a hurry and you believe the obligor actually has the money, enforcement through a private attorney is your best enforcement mechanism.
Likewise, if your circumstances have changed and you are no longer able to afford the child support you have been ordered to pay, DO NOT stop paying it or reduce the amount on your own. Either hire an attorney to help you modify your child support order or contact the Office of the Attorney General so they can help you straighten it out.
Child Support and Possession are Separate Issues
If you are the obligee (parent receiving support), you cannot prevent the other parent from exercising court-ordered visitation rights just because he or she is behind in child support payments. Likewise, if you are the obligor (parent paying support), you cannot withhold support just because the other parent is denying your visitation rights. These are two separate obligations and they are enforced separately and enforced by the courts (not the parents). (Withholding support because other parent is denying visitation)

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