The Texas Family Code awards child support based on the monthly net resources of the obligor.  Tex. Fam. Code §§154.125-.126.  The calculation of net resources includes 100 percent of all wages and salary income and other compensation for personal services (including commissions, overtime pay, tips and bonuses).  Tex. Fam. Code §154.062(b)(1).

The Texas Family code presumes that child support according to the guidelines is in the best interest of the child, the court can deviate from the guidelines or order additional child support as deemed in the child’s best interest. The Family Code provides a bifurcated analysis in setting child support, depending on whether an obligor has net monthly resources above or below $8,550. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993); Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); Tex. Fam. Code §§154.123, 154.125,154.126.

In applying the bifurcated analysis, the Texas Family code provides that when obligor’s net resources fall below $8,550 per month, the court may  deviate from the presumptive guidelines when setting child support in the following manner:

(a) The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.

(b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:

(1) the age and needs of the child;

(2) the ability of the parents to contribute to the support of the child;

(3) any financial resources available for the support of the child;

(4) the amount of time of possession of and access to a child;

(5) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6) child care expenses incurred by either party in order to maintain gainful employment;

(7) whether either party has the managing conservatorship or actual physical custody of another child;

(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9) the expenses for a son or daughter for education beyond secondary school;

(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12) provision for health care insurance and payment of uninsured medical expenses;

(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14) the cost of travel in order to exercise possession of and access to a child;

(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16) debts or debt service assumed by either party; and

(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

Tex. Fam. Code §154.123.

When the court finds that a child support obligor’s statutory net resources exceeded $8,550 per month, section 154.126 of the Texas Family Code applies. This statute provides:

(a) If the obligor’s net resources exceed the amount provided by Section 154.125(a), the court shall presumptively apply the percentage guidelines to the portion of the obligor’s net resources that does not exceed that amount. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.

(b) The proper calculation of a child support order that exceeds the presumptive amount established for the portion of the obligor’s net resources provided by Section 154.125(a) requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

Tex. Fam. Code §154.126(a) & (b)

To establish private school as a proven need, the evidence must show something special that makes the particular child need or especially benefit from some aspect of non-public schooling. In re M.A.M., 346 S.W.3d at 17. In M.A.M, concluded specifically that there was no evidence that private school was a proven need where the parties testified that they were looking into available public schools. Id at 18.

The Texas Supreme Court has declined to define the term “needs.” But it does not include lifestyle or ability to pay. The proven needs of the child includes more than the bare necessities of life. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993).

The leading case addressing needs of the child when the child might suffer from learning disabilities is In the Interest of Pecht, 874 S.W.2d 797, 801–02 (Tex.App.-Texarkana 1994, no writ). In that case, the children had a very long list of diagnoses and treatment recommendations:

  • Both children required psychotherapy;
  • Both children diagnosed with ADHD;
  • One child had numerous issues:
    • a severe language learning disability;
    • suffered from an inability to control his nervous system;
    • was aggressive with others;
    • and unable to manage his emotional state.
  • Both children needed family therapy sessions on a continuing basis.
  • Both children needed group therapy on a continuing basis.

The court found that ordering child support above guidelines was appropriate under those facts.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

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A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.