Who pays child support? Under Texas law all parents have a duty to support their child. This means the parent must provide the child with food, clothing, shelter, education and other necessary things to live. A parent who does not primarily reside with the child has the duty and obligation to support his/her child. The parent ordered to pay child support is called the Obligor. The parent who receives child support is called the Obligee.
When and how is child support paid? A child support order requires the obligor to make regular payments in a specific amount to the primary custodial parent. The court will not put limitations on how the custodial parent spends the child support. The child support is presumed to go toward the support of the child’s household, either directly or indirectly, and therefore ultimately serves the child’s best interest however it is spent. Normally the support is paid through the state registry and then sent to the custodial parent so there is a record of payment. If the court allows the payments to be sent directly to the custodial parent, it is important both parents keep a record of all payments sent and received.
What is the employer’s order to withhold income for child support? The law in Texas requires child support to be taken directly out of the obligor’s paycheck. When child support is established, an order called An Employer’s Order to Withhold Income for Child Support (also called the Withholding Order) will be signed by the judge and sent to the obligor’s employer. This order requires the employer to withhold income for child support out of each paycheck. Even if the obligor changes jobs, the withholding order will apply to any new employer of the obligor. The obligor is required to notify the court and the other parent of any changes in his employment situation including the new employer’s name, address and phone number. If both parties agree, the withholding order may be suspended until such time as the obligor becomes behind in payment. In that situation, the obligor will be responsible for making the monthly payments on his/her own and the withholding order will not be sent to the employer until he/she is late in payment. Although it may take a few weeks to get the process started, once it is up and running. The withholding order often makes the process of paying child support smooth and simple. All child support payments are then sent by the employer to a central processing unit where the checks are processed and submitted to the parent to whom the support is owed.
Who pays for the child’s health insurance? An additional required form of child support is health insurance, also called medical child support. It is the responsibility of the noncustodial parent to make sure that the child has health care coverage. This may be through private insurance, CHiPS or Medicaid. If the noncustodial parent does not have access to health insurance and the custodial parent does, the court will require the noncustodial parent to reimburse the custodial parent for the cost to insure the child. The uninsured medical expenses are normally divided equally between the parents.
How do I get a court order for child support? You have two general ways to get child support started:
1.) Contact the Attorney General’s Office. A parent seeking a court order for child support may go to the local office of the Texas Attorney General and fill out an application for assistance with child support. Most people call this the “child support office.” The parent seeking child support should be ready to provide the noncustodial parent’s home and employment addresses, telephone numbers, date of birth or social security number. The office of the Attorney General will then notify the noncustodial parent to see if an agreement can be reached regarding that parent paying child support. If an agreement cannot be reached, then the Attorney General’s office will file a lawsuit asking the court to order child support. They will also ask that the child support be deducted from the parent’s paycheck. This service is free, but you may have to wait quite a while to have a hearing. It is also difficult to get a real person on the phone at the AG’s office, to check on the status of your case.
2.) Contact a Private Attorney. A parent seeking a court order for child support may hire a private lawyer and file a lawsuit called a Suit Affecting the Parent Child Relationship. This is basically the same lawsuit the Attorney General will file. However a private attorney represents the parent and the Attorney General represents the State. A private attorney will cost more money because the Attorney General does not charge attorney’s fees to the parent seeking child support. However, there are advantages to hiring a private attorney, such as the opportunity to reach a quicker resolution and the ability to address a parent’s concerns about the standard joint conservatorship rights and duties and/or the standard visitation schedule.
How do I calculate the amount of child support? The amount owed by the obligor will depend on the obligor’s income and the number of children for whom the obligor has a duty to support (both from the children involved in this court case as well as children from another relationship).
Texas has guidelines for determining how much a parent should pay in child support. The parent responsible for paying child support is allowed to deduct from his gross pay (the income before taxes or any deductions) federal taxes, social security, union dues and cost of the child’s health insurance. After these items are deducted, the court uses a percentage of the obligor’s net income to determine the amount of child support the obligor should pay. If the obligor does NOT have any other children to support and the obligor’s monthly net resources are $6,000 per month or less, then the percentage of child support applied is as follows:
20% (from net monthly income) for 1 child
25% (from net monthly income) for 2 children
30% (from net monthly income) for 3 children
35% (from net monthly income) for 4 children
40% (from net monthly income) for 5 children
The percentage continues to increase by 5% per child, however no parent may be required to pay more than 50% of his or her net earnings to fulfill all of his or her child support obligations.
If the parent has other children to support from another relationship, the court will take that into account and the percentages will be less. (The other parent will receive a credit of 2.5% for each additional child that he or she has who is not before the court. So, if the mother is going to pay child support and has two children in this marriage and one child from a prior relationship, she will pay the dad 22.5% of her net pay.)
Also, factors such as whether the noncustodial parent is intentionally unemployed, or underemployed (not earning as much as he or she is capable) will be considered by the court. Normally, unless the non-custodial parent is unable to work due to disability, the court will require some amount of child support. It is presumed the noncustodial parent is capable of earning at least minimum wage unless he or she can prove otherwise.
On the other hand, if the obligor has monthly net income over $6,000, the court will apply the percentage guidelines to the first $6,000 of the obligor’s net monthly resources, and may order additional amounts of child support as appropriate, considering the income of the parties and the proven needs of the child.
The obligor also gets a credit on calculating his or her net pay if he has to pay union dues or state income tax. (If he or she doesn’t live in Texas, they may have to pay a state income tax.)
What if the parent does not pay the child support? As explained earlier with visitation, a child support order is an ORDER from the court. This means if a parent refuses to timely pay his or her child support, the other parent can go back to court and ask the judge to enforce the order. The parent who refuses to pay child support can be punished by contempt and put in jail and/or fined. A parent who is not receiving child support may seek assistance through the collection of the child support office at their local Attorney General’s office or may hire a private attorney.
Recovering child support after the child becomes an adult – I get lots of questions about collecting child support once the child becomes an adult at age eighteen (18). If child support was previously ordered to be paid, but the obligor didn’t pay what was ordered, the obligee can bring a suit to collect the unpaid support for up to four (4) years. Once the child turns twenty-two (22), a suit to recover either retroactive child support or unpaid child support is permanently barred.
I also get questions from young adults about whether or not they can sue the parent who was ordered to pay child support, but who did not pay as required. The simple answer to that is, “No.” The support obligation is owed to the parent, not to the child. The young adult’s parent who raised them can sue the person who had the duty to pay child support, but the child cannot sue. And, the parent MUST sue before the child turns twenty-two (22) years of age.
When can I get an increase in child support? You are entitled to a “child support review” every three (3) years, measured from the date that the final order granting you child support was put into place. You will be entitled to an increase if the amount of the increase is the lesser of twenty percent (20%) more than you are presently receiving or at least one hundred dollars ($100.00). If you or the kids are on any public assistance (food stamps, public housing, CHIPS, Medicaid, etc.), it is very likely that the Office of the Attorney General will contact you regarding a child support review. If you and the kids are not on public assistance, you likely will have to hire an attorney to help you find out whether you are entitled to an increase in child support.
Click here for a free child support calculator (PDF file)!
This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.