What Child Support Covers - And Does NOT Cover

I read an interesting article by Natalie Gregg in Huff Post What Child Support Does Not Cover. It is an all-too-common complaint by the parent paying child support that the other parent “spends the money on him/herself”.  Many paying parents want to put restrictions on what child support can be spent on, to prevent the other parent from personally using the money. While it may seem like child support is being mismanaged to some – and maybe in some cases it is being mismanaged -- Texas law does not support placing restrictions on how child support is spent.  Judges do not want to micro-manage child support expenditures.  That would simply take too much time.  Instead, child support goes “into the pot” so to speak.  Child support obviously covers the child’s direct expenditures, such as clothing, food, and daycare.  But, it also goes to cover a portion of the house the child lives in and the car the parent drives the child around in.

Child support may not actually cover the “extras” for the child, like dance lessons and tutoring.  As a child gets older, she points out, the expenses grow into items like cars and car insurance.  Further, Texas law has no provision for a child’s college expenses, so either a parent has to save for that, or the child will have to bear those costs on his or her own.

Ms. Gregg makes a good point that, when faced with a daughter who wants a new prom dress, a dad isn’t (or shouldn’t) say “that’s what I pay your mom child support for”.  Sometimes children, like a lot of things in life, cost more than you anticipate.


Would Marc Anthony Be Required To Pay More Child Support in Texas?

As reported by the Huffington Post, Marc Anthony’s ex-wife, Dayanara Torres, is taking him back to Court and requesting that a Judge order him to pay more child support for their two children. Dayanara is requesting Marc Anthony’s child support obligation be increased from $13,000 per month to $112,000 per month. She is citing his child support arrangement with his ex-wife Jennifer Lopez as one of the reasons why his monthly child support should be increased.

If Dayanara and Marc lived in Texas, Dayanara would be entitled to a modification of child support two ways:

There has been a material and substantial change in circumstances since the last court order regarding child support.

At least three years have passed since the last court order regarding child support.
Dayanara could cite a number of things to meet the burden of a “material and substantial change of circumstances.” At the time of Dayanara and Marc Anthony’s divorce in 2004, the singer claimed he was having “money troubles.” Fast forward nine years, Marc Anthony allegedly earns $1.25 million a month. If Dayanara can prove that Marc Anthony is making more money now than when the couple divorced, she will have met the burden of a “material and substantial change of circumstances” and his child support would be modified according to his new level of income.

In Texas if three years have passed since the last court order regarding child support, Dayanara would be entitled to an automatic review of Marc Anthony’s child support obligation. Because three years have passed since the last court order regarding child support, Dayanara would not be required to meet the burden of a “material and substantial change of circumstances.”

Texas Maximum Child Support Cap Is Changing September 1, 2013

Currently, there is a cap in the monthly net resources used when calculating child support in Texas. The current child support cap in Texas is $7,500.00 net monthly resources per month. Depending on the number of children involved, the monthly net resources are then multiplied by a percentage for the number of children a parent has a duty to support as represented below.

Beginning September 1, 2013, the cap in the monthly net resources used when calculating child support will be increased to $8,550.00 per month. This change will affect any and all cases filed after September 1, 2013 as well as cases that are pending as of September 1, 2013. Therefore, if you are finalizing your child support case prior to September 1, 2013 and your monthly net resources exceed $7,500.00 per month, you should consider modifying your child support to be in compliance with the new law in order to save yourself from a future modification of child support.

Having Another Child Will Affect Your Child Support in Texas

As reported by the Huffington Post on Friday, April 5, 2013, Halle Berry is expecting her second child (the father is Olivier Martinez). Halle Berry has a five year old child, Nahla, from a previous relationship with Gabriel Aubry. Reportedly, Halle Berry pays child support to Gabriel Aubry. However, with the birth of a second child, Halle Berry may seek a reduction in child support.

In Texas, when the parent who has a child support obligation has another child, the parent paying child support is entitled to a modification of their child support obligation. The legal burden to modify a person’s child support is a “material and substantial change in circumstances.” When there is a birth of another child, the percentage of a parent’s monthly net income for child support purposes changes.

If Halle Berry were paying child support to Gabriel Aubrey in Texas, her child support obligation would be 20% of her monthly net income ($7,500.00 is the maximum for monthly net income) plus the cost of the child’s monthly health insurance premium. Once her second child is born, Texas recognizes the fact that Halle would have another child to support. Therefore, the percentage of her monthly net income for child support would change from 20% to 17.5% per month.

It is important to remember that these changes in percentages and thus the monthly child support obligation only changes when a person obtains a new Court order that changes their monthly child support obligation


Texas Supreme Court Holds Child Support Obligor Must be Current on All Child Support to Escape Contempt Under Texas Family Code 157.162(d)

In an opinion delivered on March 8, 2013 and authored by Justice Lehrmann, the Texas Supreme Court lent clarity to the Family Code’s “purging” provision (Texas Family Code 157.162(d) which allows a respondent to escape contempt of court if he produces evidence at the hearing showing he is current on his child support).  According to the Texas Supreme Court, the plain language of Texas Family Code 157.162(d) is the best guide to the statute’s meaning and confirms that the purging provision is only activated if an obligor is current on all child support obligations at the time of the enforcement hearing, not just those pled in the motion to enforce.

In the underlying proceedings arising out of Tarrant County, Father was held in contempt and sentenced to 174 days of jail (to be served on the 2nd and 4th weekends of each month) for failing to pay his child support as ordered. While Father paid all the past due payments that were alleged as violations in the motion for enforcement by the date of the hearing, he remained delinquent on his child support payments that arose between the time the motion was filed and the date of the hearing.  Father claimed he properly invoked the purging provision and, thus, could not be held in contempt.   The Fort Worth Court of Appeals agreed with Father.  So Mother and the Office of the Attorney General of Texas took this case to the Supreme Court.

According to the Texas Supreme Court, the trial judge was right -- Father could not avoid a contempt finding by invoking the purging provision because he was not current on all his court-ordered child support due at the time of the contempt hearing:

“The court may not find a respondent in contempt of court for failure to pay child support if the respondent appears at the hearing with . . . evidence . . . showing that the respondent is current in the payment of child support as ordered by the court.” TEX. FAM. CODE § 157.162(d). We are called upon to interpret this section of the Texas Family Code, which provides a mechanism by which an obligor who has violated a child support order may avoid a contempt finding. We hold that this language is unambiguous and means what it says: an obligor must be current on court-ordered child support payments due at the time of the enforcement hearing, regardless of whether those payments have been pled in the motion for enforcement, in order to invoke section 157.162(d) to avoid a finding of contempt where contemptuous conduct has otherwise been properly pled and established. Holding otherwise would contravene the statute’s plain language and allow a recalcitrant obligor to escape a valid contempt finding by paying only those payments pled in a motion to enforce while continuing to disobey the prior order before the enforcement hearing. We therefore hold that the trial court did not abuse its discretion in entering a contempt order in this case. We conditionally grant relief and instruct the court of appeals to vacate its judgment, thereby reinstating the trial court’s contempt order.

Whether you are a child support obligor, obligee, or an attorney representing either party, this is an important case to keep in mind in all child support enforcement matters. 

Click here to read the opinion: http://www.supreme.courts.state.tx.us/historical/2013/mar/110255.pdf


The High Cost of Informal Child Support Payments

Although it might seem easier at the time, when it comes to informal payments for child support the best policy for both parties is to avoid them.

For obligees (people receiving child support), it is usually best to require your ex to make payments through the State Disbursement Unit. The Office of the Attorney General in Texas keeps records of payments received. These records help in enforcing child support against a non-paying ex. Requiring payment through the State can also be a good thing in cases where it is necessary to limit contact between the parties.

For obligors (people paying child support) it is important that you strictly follow your child support orders as to the date, amount and method of payment. If your decree says to pay your child support through the State Disbursement Unit, then do it. Informal payments to your ex will not appear on the payment records kept by the Office of the Attorney General. This causes problems when a less-than-honest ex tries to double-dip and denies receiving payment. If you do decide to make an informal payment, always retain proof (like copies of a check or affidavits of informal payment) in case this issue arises.

For obligees and obligors alike, you must understand your child support order and what it means for you on a day-to-day basis. If something is unclear or if you are having problems with receiving payments or getting credit for payments, contact a family law attorney for a consultation. Do not delay - failure to pay court-ordered child support can be serious, resulting in fines and even jail in some cases.

Can I pay my child support directly to the other parent instead of making payments through the State?


The simplest answer to this question is no. It is never a good idea to make any direct payments of child support to the other parent. Most Texas divorce decrees and custody orders contain very specific language prohibiting these kinds of payments. Direct payments of child support in Texas are characterized as informal payments of child support. Most Texas child support orders specifically state that any informal child support payments made are considered payments made in addition to child support not payments made in lieu of child support. Therefore, any informal payments of child support are essentially gifts to the other parent.

If you have made the mistake that many parents have in Texas, and have made child support payments directly to the other parent, stop immediately. Obtain a copy of an Affidavit of Informal Payment from the Texas Attorney General website or contact a Dallas divorce lawyer or Dallas child custody lawyer to assist you with getting the other parent to execute an affidavit confirming the direct payments of child support received. Moving forward make all payments of child support through the state disbursement unit in San Antonio.


Statutory Presumptions Don't Apply to Modification Proceedings

In a modification of orders regarding children following a Texas divorce, sometimes lawyers get confused about the application of presumptions like the presumption of the application of guideline child support or the presumption against joint conservatorship when there has been domestic violence. In fact, neither of these presumptions apply in a modification proceeding. Likewise, the parental presumption does not apply in a modification proceeding. So, if you have a case for modification of child support where the obligor makes more than the ceiling amount, the court is not bound by the strictures of the guidelines and the burden of proof required in a divorce or original proceeding to exceed the guidelines. The court may set any amount of child support that the court finds is in the best interest of the child based upon the evidence.

To read the Court of Appeals’ decision, click here: See In re S.E.K., 294 S.W.3d 926 (Tex. App. – Dallas 2009).

Supreme Court Finds No Automatic Right to Counsel in Child Support Contempt Proceedings

The U.S. Supreme Court has found no automatic right to counsel for indigent civil defendants facing jail time, though it ruled on behalf of a father who served a year in prison for failing to pay child support.

The father, Michael Turner, was deprived of his 14th Amendment right to due process, the Supreme Court ruled in a 5-4 decision.

Free lawyers aren't required in such situations, but states must have procedural safeguards in place to help determine whether the parent is able to comply with the support order, according to the majority opinion (PDF) by Justice Stephen G. Breyer.

Turner had told the trial judge who sentenced him to prison that he was unable to pay because “dope had a hold to me” until he broke his back and was laid up for two months. “And, now I’m off the dope and everything,” he told the court. “I just hope that you give me a chance.”

The judge sentenced Turner to a year in jail without making an express finding about his ability to pay. Turner's appeal, brought with the help of a pro bono lawyer, argued he had the right to counsel at his contempt hearing.

Breyer's opinion found that Turner did not get due process in his case, but said a lawyer was not an automatic requirement.

The 14th Amendment’s due process clause allows a state to provide fewer procedural protections to civil contempt defendants than in a criminal case, which is governed by the Sixth Amendment, Breyer said. He noted that both parties in a child support case are often unrepresented by lawyers, and providing a lawyer to just the noncustodial parent “could create an asymmetry of representation” altering significantly the nature of the proceeding.

He also noted the argument of the Solicitor General that alternate procedural safeguards can help reduce the risk of wrongful incarceration. They include: notice that ability to pay is a critical issue, the use of a form to elicit financial information, an opportunity for the defendant to answer questions about his financial status, and an express finding by the court on ability to pay.

Breyer said his opinion does not address a situation where child support is owed to the state, possibly as reimbursement of welfare payments to the parent with custody. Nor does the opinion address the due-process requirement for counsel in a particularly complex case.

Four dissenting justices agreed there is no right to appointed counsel for indigent defendants facing incarceration in civil contempt proceedings. They would not have reached the issue of the need for alternative procedural safeguards.

The ABA had argued in an amicus brief that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. The case is Turner v. Rogers.


Hat tip to Debra Cassens Weiss for this June 20, 2011 post to the ABA Journal


US Supreme Court Set to Hear Child Support Contempt Case

From The Nerve blog:

The nation’s top court will hear the appeal of an indigent father who contends his rights were violated because he wasn’t provided an attorney before being jailed for failing to pay child support.

The U.S. Supreme Court announced it accepted the case of Michael D. Turner v. Rebecca Price and the S.C. Department of Social Services. Oral arguments could be heard as early as March, with a ruling by the nine-member court likely by the end of June 2011, based on the court's past practice, Greenville lawyer Derek Enderlin, one of Turner’s appellate attorneys, told The Nerve on Monday.

Having an appeal accepted by the top court is a rare legal feat: Out of about 10,000 petitions the justices receive annually, only about 100 are heard during a term, which started last month.

South Carolina is one of only five states in the nation – along with Georgia, Florida, Maine and Ohio – that don’t guarantee indigent parents who owe child support the right to an attorney in civil contempt hearings that can result in jail time, according to Turner’s U.S. Supreme Court petition. That situation creates modern-day debtors’ prisons, as judges are more likely to jail indigent parents without attorneys for contempt, Turner and his supporters say in court papers.

In Texas child support courts, obligors (the person owing the child support) is generally not entitled to a court appointed lawyer if the potential punishment is "petty" -- less than 6 months total in jail and less than $500 fine total. But, if the obligor could be jailed for more than 6 months total or be ordered to pay an aggregate fine over $500, then the punishment is considered "serious" and invokes the right to an attorney.

This will be an interesting case to watch and evaluate how it will impact child support collection laws and procedures across the country.

Hat Tip to the Family Law Prof Blog for the lead on this story.


New Law Puts Credit Card Debt Before Single Moms

In July, Congress approved the overhaul of financial regulations protecting borrowers against abuses in credit card, mortgage, and other types of lending. However, the new law failed to reform a 2005 bankruptcy law that hurts single mothers and benefits the credit card industry. This law makes it easier for delinquent dads to avoid paying child support and alimony.

Until 2005, bankruptcy wiped out credit card debts while leaving child support and alimony obligations intact. This helped women because their ex-husbands had more funds available to fulfill their support obligations after bankruptcy. Now the credit card debts can't be discharged, so women find themselves competing with Visa and MasterCard for a share of their ex-husband's paychecks. And, women don't have the sophisticated collection departments credit card companies do.

The bankruptcy law provides a means test to determine how much income a debtor has available to pay creditors after they pay their basic living expenses. People who earn more than the median income in their states and can pay their creditors at least $6,000 spread out over 5 years are put in Chapter 13 bankruptcy rather than the traditional Chapter 7 category. Chapter 7 allows full discharge of all debts. On the other hand, Chapter 13 requires debtors to pay a portion of their credit card balances, medical bills, and other debts for 3-5 years.

The result is that divorced women are getting hit two ways by the new law -- by the new hurdles it places in the way of collecting their child support payments and by their own exposure to the provisions that make it harder to completely discharge their debts.

Special hat tip to Scott David Stewart for the lead on this important issue.

Inheritance Is Net Resources For Child Support Calculation

The Dallas Court of Appeals issued an opinion today in a Dallas child support case and held that an inheritance should be included as income for the purposes of calculating child support.  The father received a one-time inheritance of approximately $400,000 and, because he was going through a hard financial time, used that money to live on.  He argued that although his “net worth has increased by virtue of his inheritance,” his income has diminished materially and substantially since the time of the divorce. Tmother contended that his inheritance should be considered part of his income for calculating child support.  Thus, the mother sought an increase in child support based on the inheritance.

Texas Family Code 154.062 defines Resources to include:

  1. 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
  2. interest, dividends, and royalty income;
  3. self-employment income;
  4. net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
  5. all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.

The court of appeals held that the inheritance amounts to "all other income" under number 5 of the statute.

However, one justice of the three judge panel disagreed.  She stated that an inheritance is not considered income in any definition.  In her opinion, the court could consider the inheritance as a factor in calculating child support over the State of Texas guidelines under Texas Family Code section 154.123.

I agree with the dissent here.  An inheritance is not "income" -- a party does not pay income taxes on an inheritance.  This is important because the court must apply the guideline percentages for figuring the amount of child support to the income numbers.  So, an unexpected inheritance could result in a dramatic and improper increase in child support based on the percentage.  However, a court can consider all of the relevant factors, such as an inheritance, in deciding whether applying the guideline percentages to a case are fair and equitable in that particular circumstance.  It seems like the more reasoned and logical approach to consideration of an inheritance would be to consider it an "other factor" rather than applying the guideline percentage to that amount.

Dallas Divorce Lawyer Michelle May O'Neil Appears On Local Television Program Today

Today, channel KDTX featured Michelle May O'Neil on the television show Joy In Our Town to discuss challenges in paying and receiving child support in a down economy.  O'Neil gave pointers to obligors (paying support) who have lost their jobs and find it difficult to make the payments, as well as to obligees (receiving support) who need to collect and enforce the payment.

UPDATE:  Unfortunately, the show's airing has been delayed until November 13, 2009 at noon.  But you can see it below!

To watch the video, click here: www.youtube.com/watch


But He Used To Make More -- Is He Intentionally Underemployed for Child Support Calculation?

To Show Intentional Underemployment for Purposes of Calculating Child Support, Must Show Intent, Not Just Reduction of Income

Facts: Trial court found Father’s monthly net resources were $4,779.90 in 2006, and $3,393.40 in 2007. Trial court further found Father obligated to support 2 children, one before the court and another from a previous marriage. Divorce decree shows family code guidelines direct child support payments of $593.77/month based upon Father’s 2007 monthly net resources. Trial court, however, found that “testimony shows that the obligor [Father] was voluntarily underemployed during 2007” and set child support payments at $825/month.

Held: Affirmed final decree of divorce as modified.

Opinion: To begin the voluntary underemployment analysis, trial court contemplates obligor’s proof of cur-rent wages. Once obligor’s wages are established, burden shifts to obligee to demonstrate obligor’s intent to decrease income for purpose of reducing child support payments. Evidence of intent, such as circumstances of obligor’s education, economic adversities, business reversals, business background, and earning potential, gives rise to an inference of voluntary  underemployment. These factors, however, are not exhaustive.

Father’s employer stated that by agreement Father set his own schedule and did not work every day. Employ-er further testified that he assigned Father’s projects, and Father received a 40% commission from the profits.

Employer told trial court that Father earned $62,730 in 2005, $76,900 in 2006, & $54,300 in 2007. When asked about the earnings decline between 2006 and 2007, Employer indicated that he reduced Father’s work-load based on Father’s emotional state and that his business decreased overall because of adverse economic conditions. Employer testified Father did not ask for a reduction of his workload, and that he subsequently asked Employer to increase it. Father told trial court that in 2007 his income decreased more than the income of the business overall because Employer would assign more work in the downturn to those employees with lower commission percentages. There is no evidence to the contrary.

Mother had the burden at trial to present evidence of underemployment as a specific basis for departing from child support guidelines applied to Father’s 2007 income. Such evidence must be of a “substantive and proba-tive character” giving rise to an inference of intentional underemployment. She did not meet this burden. Therefore, final decree of divorce modified in part by substituting $593.77 for $825 as the amount of Father’s monthly CS obligation.

Comment: Given current economic conditions, in our practices we are likely to be on one side or the other of a situation in which the child support obligor loses their job or suffers a decrease in income. Naturally, the obligor is going to want to reduce their child support payments accordingly. It is also likely the obligee is going to be unhappy that there is less money coming in. Although the obligee might be unhappy and might be used to higher child support payments, in this economy, decreased income for many is a reality, and, as this opinion illustrates, does not form the basis for a claim of intentional underemployment. The moral of this case – you have to show some intent to prevail on a claim of intentional underemployment. M.M.O.

In re J.G.L., ___ S.W.3d ___, 2009 WL 2648401 (Tex. App. – Dallas 2009, no pet. h.) (08/28/09).

Dallas divorce lawyer vindicates father's rights

On August 28, 2009, the Dallas Court of Appeals issued an opinion relating to intentional underemployment and its impact on determining child support.  Pursuant to Section 154.066 of the Texas Family Code, if an obligor is intentionally unemployed or underemployed in an attempt to reduce child support payments, the court's wage and salary income calculations are not limited to actual earnings, but instead are based on the obligor's earning potential. 

In In the Interest of J.G.L., the Dallas Court of Appeals modified the trial court's ruling finding that husband was intentionally underemployed in an attempt to reduce his child support payments.  In the Interest of J.G.L., No. 05-08-01124-CV -- S.W.3d -- (Tex. App. - Dallas, August 28, 2009).  The court noted that the Texas Family Code requires courts to make specific findings if "[t]he amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines."  Id.  Thus, a finding of voluntary underemployment allows to the court to set child support at the earning potential, rather than the actual earnings, of the obligor.  Id.  Once the obligor's wages are established, the burden shifts to the obligee to show the obligor's intent to decrease income for the purpose of reducing child support payments.  Id.  Evidence of such intent can be established through examination of the obligor's education, economic adversities, business background and earning potential.  Id.  (citing In re P.J.H., 25 S.W.3d 402, 405-06 (Tex. App. - Fort Worth 2000, no pet.).  

At trial, the obligor's employer testified as to father's level of income over the preceding three years.  Specifically, employer testified that father earned $62,730 in 2005, $76,900 in 2006 and $54,300 in 2007.  The employer indicated that father's work load decreased because of his emotional state during the divorce and because the employer faced adverse economic conditions.  Id.

The court then noted that mother had the burden at trial to present evidence of intentional underemployment as a specific basis for departing from child support guidelines applied to father's 2007 income.  Of course, evidence sufficient for this purpose must be of a substantive and probative character.  At trial, however, mother did not provide any testimony or offer evidence in support of her assertion that father was intentionally underemployed.  Id.  As a result, the court held there was no evidence supporting a finding of voluntary underemployment.  Id.

J.G.L. shows how important it is to know your rights when it comes to determining child support amounts.  In light of the current economic downturn, it is understandable that income levels have dropped.  Bottom line: in order to deviate from the child support guidelines, specific evidence must be introduced supporting a claim of intentional under or unemployment.   

As a Dallas divorce lawyer, it is critical to stay up to date on new case and statutory law which affects child support orders.  If you are facing a claim of intentional under or unemployment, remember the other side bears the burden of proof.  Please feel free to contact our offices if you are navigating the child support river and need assistance in doing so.



Dallas Divorce Lawyer Quoted in Dallas Morning News

Dallas Divorce Lawyer Michelle May O'Neil was quoted in the July 2nd, 2009 edition of Dallas Morning News in Emily Ramshaw's article Child Support Suffers As Economy Suffers.  The story lead Thursday's edition with Ms. O'Neil's picture appearing on page 14A.  

Here's the excerpt from the article pertaining to Ms. O'Neil:

Michelle May O'Neil, a family law attorney with clients in Dallas and Collin counties, said Crouse's case is common. She's seen a steady uptick in child support-paying parents who have either lost their jobs or had their hours reduced.

O'Neil said family court judges, who traditionally have issued permanent rulings, are giving these financially strapped parents temporary relief instead.

If someone is unemployed, she said, a judge generally will temporarily reduce child support, and then call a review hearing a few months later.

"A kiddo's expenses don't go away just because the economy is tight," O'Neil said. "Judges are giving people a Band-Aid so they can find another job."