Child Support

We represent both obligors and obligees in original actions that establish child support obligations, child support modification actions, and enforcement actions.

The following provides a general discussion of the most common issues and misconceptions that arise in cases involving child support. As always, the following discussion does not serve as a substitute for obtaining an attorney and discussing your case with an attorney. Every case involves its own twists, and even if your case seems to fit the common scenarios described below perfectly, that does not mean that exceptions do not exist or that a judge will perceive it that way. Having an experienced attorney who knows how to prepare a case, how to negotiate with opposing parties, and how to present a case in court is just as important as knowing the brief synopsis of the law below.

The Obligation to Support

Texas Law states that every parent owes an obligation to support their children from the time they are born until they attain majority: usually, the later date of when they (1) turn eighteen or (2) graduate from high school. Although most people speak in terms of the child support obligation of the parent who does not live with the children, both parents technically owe a duty to support a child. However, Texas Law implicitly presumes that the parent with whom a child resides satisfies this obligation through providing the child with a home, food, clothing, and other basic necessities. Because a parent who does not reside with the child does not implicitly provide these things, that parent's obligation to support is boiled down to financial terms.

This financial obligation exists regardless of whether the parties have gone to court and obtained a formal order to pay child support. A formal child support order merely clarifies the amount of child support owed, establishes a schedule of periodic payments, and sets up potential contempt penalties used to enforce child support orders if the obligor fails to make the payments. Even if the parents have never gone to court, unpaid child support debt ("arrearages") begins accruing from the day the child is born, not the day the parties first go to court or the day a court order is entered.

Statutory Guidelines

Texas law sets standard guideline child support amounts that eliminate a lot of the squabbling over how much is appropriate. These guidelines set child support at a certain percentage of a parent's "net resources" (income after taxes, health insurance, and union dues are deducted), up to a maximum of $7500 per month. The $7500 per month maximum (approximately $132,000 per year) reflects that child support is designed as "support," not as "lifestyle to which they are accustomed" payment or a windfall for the custodial parent. Parents who earn more than $132,000 per year will generally pay the same amount of child support as someone who earns $1,000,000 or more per year.

The percentage of child support starts at 20% of net resources for one child, and an additional 5% for the second (25%), third (30%), fourth (35%), and fifth (40%) additional child who resides in the same household. The guideline amounts are lower if a parent also supports children in another household. It is possible to deviate from guideline support in either direction, but a court must make specific findings justifying the deviation. For instance, a child having special needs often justifies setting child support above the guidelines, whereas allowing a non-custodial parent to afford to travel to exercise his or her periods of possession commonly justifies a downward deviation.

"Obligor / Obligee"

To clarify two common terms used in child support cases, an unmarried parent who does not reside with the child and therefore must pay child support is referred to as the "obligor:" the party who is obligated to pay child support. The parent with whom the child primarily resides is referred to as the "obligee:" the party who receives child support on behalf of the child. The "obligee" need not be the other biological parent opposite the obligor. It might be a grandparent, relative, other caretaker, or a governmental agency who has been appointed as the managing conservator of the child. Indeed, in some rare cases, both parents are "obligors," and a non-parent is the "obligee."

Four Common misconceptions

Four common misconceptions exist regarding the obligation to pay child support. First, although some might consider it rather obvious, the obligation to support a child exists regardless of whether a parent intended, wanted, or desired the child. This obligation is also independent of the decision to keep or abort a pregnancy. If an adult engages in behavior that might result in a child being born, then that adult implicitly accepts the risk that a child might result, and that the adult will thereafter be obligated under Texas Law to support that child during its childhood. The law does not look at the issue from the perspective of the parents, and does not care about the parents' motives, desires, deceptions, manipulations, or incompatibility. Instead, Texas Law looks at it purely from the child's perspective and a child's right to receive support from his or her parents, regardless of who they are or what they did to each other. Put simply, if a child is born, the parents must support it.

Second, the obligation to support is also separate from, and not related to, the right to visit or possess the child or the right to be involved with the child's life. As such, even in the unfortunate situation where a parent wants nothing to do with a child or the other parent, a parent may not escape the obligation to pay child support merely by not exercising visitation or by not being involved with the child. Similarly, a parent does not lose the right to possession and access to the child because he or she does not pay child support. Put bluntly, child support is not treated as "payment" for the right to visit: failing to pay child support does not deprive a parent of the right to possession and access (as if she or he did not "pay for the privilege"), and failing to exercise the right to possession and access does not negate or reduce the obligation to pay child support. Indeed, if anything, and as discussed further below, actually exercising one's periods of possession, sharing the parenting burdens, and maintaining a good relationship with one's child can help an obligor if and when push comes to shove in Child Support Court.

Third, and somewhat related to the second clarification, the obligation to support a child is not owed to the other parent, it is owed to the child. The parent who receives child support ("obligee") merely receives child support on behalf of the child. Although most child support disputes involve the two parents, child support is designed for the child, not as a windfall for the custodial parent or a burden for the non-custodial parent. Additionally, the parent with whom the child resides may not (and should not purport to) "bargain away" the obligation to support in return for the other parent staying out of the child's life. Even though this bargaining does occur in some cases, it is similar to people who get away with jay-walking or speeding: just because it might happen all the time does not mean it is legal to do so. If, for instance, something happens to the parent who resides with and cares for the child (or that parent just changes his or her mind), the obligor may not evade his or her child support obligation by claiming that "we had an agreement." Because you cannot bargain away rights or things that do not belong to you, neither parent may "bargain away" the other parent's obligation to pay child support.

Finally, a parent may not evade his or her obligation to support a child by quitting their job and becoming a pauper. This tactic is perhaps the most common and ineffective tactic experienced in child support court. From a practical perspective, doing so might delay enforcement and might thwart a non-assertive obligee, but such a strategy usually backfires horribly: not just for the child, but also for the obligor. First, living like a pauper is not nice, and the obligor implicitly imposes this undesirable lifestyle upon himself or herself. More significantly, from the law's perspective, having a child means that you lose your right to live the life of a vagabond or pauper: the obligation to support a child includes an obligation to maintain gainful employment, if only to be able to pay child support. Even unemployed obligors must continue to pay child support at a level a judge determines reflects "gainful employment" given that obligor's education, experience, and skills. If an obligor does not pay, then arrearages continue to accumulate at the same rate regardless of whether the obligor is gainfully employed. Finally, although "debtor's prison" has generally been outlawed in the United States and you cannot go to jail for not paying most debts, child support is one of the few debts for which you may go to jail for not paying. The only way to stay out of jail is if the obligee fails to pursue the claim or stops pursuing the claim. Put bluntly, making oneself a pauper will only make things worse for all involved. Your child suffers, you live in misery, and your child support debt will just get larger and larger until one day you end up in jail.

The Central Registry: "No Credit for Informal Payments"

Texas has established a central registry in San Antonio into which obligors must pay all child support payments, and from which all obligees receive child support payments. This central registry helps eliminate most of the common, repetitive disputes regarding how much or how little child support an obligor has paid. All child support orders thus require the obligor to pay through the central registry and clearly state that there is no credit given for informal payments made outside the registry, whether directly to the obligee, the child, in the form of tangible goods, or otherwise. However, the actual impact of this warning differs from case to case.

Child Support Lawsuits (Suits Affecting Parent-Child Relationship, aka "SAPCRs")

Child support issues arise most commonly in three legal contexts: 1) in a divorce proceeding, 2) in a non-marital Suit Affecting the Parent-Child Relationship (referred to as a SAPCR suit), and 3) in a child-support enforcement suit brought by the Texas Attorney General's Office. All parents may (and preferably should) determine their child support obligations through private, civil-law SAPCR proceedings: whether a part of a divorce or not. If they do not do so, the Texas Family Code authorizes the Texas Attorney General's Office to pursue non-custodial parents for failing to meet their obligation to support their children.

In all such suits, there are two steps to the child support enforcement process: 1) establishing an order reflecting the net resources of the obligor and the periodic payments the obligor must pay; and 2) enforcing that court order. The order that establishes the amount of child support is not restricted to prospectively setting periodic payments; it may also include provisions for paying past arrearages of unpaid child support. Once the order to pay child support is in place, the obligor must follow that order or face enforcement. Once an enforcement action has been filed, a court may enforce the child support order through contempt-of-court sanctions. Such sanctions commonly involve additional fines or imprisonment, but may also include other "creative" sanctions depending on the judge.

Child Support in Divorce and non-marital SAPCRs

Child support is commonly established in a SAPCR suit between the parents, which might arise in the context of a divorce or a lawsuit between two people who have never been married but need to establish their legal rights and obligations regarding their children. Texas law requires that all divorces involving children born during the marriage also include a SAPCR suit regarding possession, access to, and support of the children of the marriage. The "divorce" part of the lawsuit addresses what happens between the divorcing spouses (mostly involving the division of community property); the SAPCR suit, on the other hand, determines what happens with the children: conservatorship, possession schedules, child support, and any other rights and responsibilities of the parents. For purposes of establishing child support, there is no difference between a SAPCR brought as part of a divorce and a SAPCR brought between two unmarried parties.

Attorney General Enforcement Suits

Because unpaid child support obligations rose to epidemic levels that placed a significant burden on government social services (health care, welfare, etc.), the Texas Family Code provides that certain governmental agencies may enforce child support obligations. The Office of the Texas Attorney General is the primary government agency that assumes the role of generally enforcing child support obligations in Texas.

The Attorney General's Office may initiate an original child support proceeding that creates and then enforces a child support order, or it may file an enforcement action on an existing child support order that an obligor has allegedly violated. All appearances set aside, the Attorney General does not represent the parent with whom the child resides. They represent the child's interests and rights to receive support as well as the government's interest in not allowing children to unnecessarily become burdens on government services (such as Medicaid). Consequently, obligees should strongly consider retaining attorneys of their own to represent them in Child Support Court. Along those lines, the Texas Family Code actually requires a court to order a deadbeat obligor to pay for an obligee's attorney fees if the court finds that the obligor has not satisfied his child support obligation, thereby requiring an obligee to hire an attorney to enforce the order.

As an obligee, there is only so much that the Office of the Attorney General can do in Child Support Court. They cannot force a deadbeat parent to help care for a child or force them to be proper parents; they can only try to force them to pay child support. Many obligees consider that better than nothing, but most would prefer that the other parent also not neglect his or her role as a parent in their child's life. Moreover, many obligees end up frustrated with the endless delays and bureaucratic burdens of bringing an enforcement suit. It is a huge system, and it is not tailored or known for its individual customer service. Consequently, many obligees often leave Child Support Court more disheartened than satisfied. Finally, again, the Attorney General's Office does not represent obligees in Child Support Court--it represents the State of Texas--and some obligees leave Child Support Court feeling abandoned by the system.

As an obligor who has fallen behind in child support payments, once you are finally caught and dragged into court, there is little you can do to escape, and the court and courtroom procedures frankly are set up to make sure that is the case. If you are an obligor who believes that you can get away with not paying or if you think it is "no big deal," do yourself a favor and take a morning to visit the court and watch how it works. Once the child support order is in place, child support judges commonly send obligors to jail even if they have compelling tales of misfortune and economic hardship. These judges hear sob stories constantly and they do not care; once a case comes before them, they are often inclined to lock an obligor up if only to send a message to that obligor and to others in his or her situation.

Put bluntly, if you can avoid Child Support Court, especially as child support obligor, do so.

Modification of Child Support Orders

As an obligor, if circumstances change because you lost or change jobs and your net resources decrease, do not wait to fall behind on child support payments! It is best to be proactive and petition the court immediately to modify the child support obligation to reflect the decrease in net resources. As noted above, a judge will evaluate whether the decrease was genuinely incurred or done to manipulate the child support system. Nonetheless, the absolute worst way to handle such a change would be to sit idly by, fall behind on child support payments, and wait for the Attorney General's Office to pursue you. By the time such enforcement actions arise, many obligors commonly face $20,000 to $30,000 in unpaid arrearages and penalties. Moreover, if an obligor waits until enforcement proceedings are brought, the explanation of why an obligor fell behind sounds more like a poorly-manufactured excuse to get out of an arrearage than a result of a genuine change in circumstances.

As an obligee, if circumstances change and the court order no longer accurately reflects the obligor's net resources, you may similarly petition the court to increase monthly payments. The sooner you bring such a petition, the sooner the child support payment may increase.

Defenses to Child Support Enforcement Actions

From the perspective of a parent who does not reside with a child, the above summary of the law might seem rather onerous and filled with bad news. However, there are several ways to defend oneself from a suit for child support that you should discuss with your attorney. As with all summaries of the law contained on this web site, you should not take this summary and try to defend yourself because there are exceptions and twists not contained in this summary. Moreover, knowing the law does not mean you know how to assert it in court; you need a good, experienced attorney who knows how to successfully take advantage of these defenses in court.

First, on a more practical note, and despite the onerous appearances described above, the purpose of child support enforcement is not to whimsically throw obligors into jail, but ultimately to get them to pay child support. It does a child no good to lock an obligor up because that obligor will lose any job he has and not be able to work and generate income that can go toward child support. Once an obligor shows a genuine acceptance of his or her obligation to pay child support, courts try to give such obligors a chance to do so, and will structure the child support obligation so it is possible for the obligor to meet it. Courts do not want to set an obligor up for failure; they simply want the obligor to fulfill his obligation to his child.

Second, although maternity is usually not in question (for obvious reasons), putative fathers should usually obtain a DNA test to confirm paternity. Even in cases where a father purportedly "knows" the child is his, plenty of such fathers have been surprised to discover that a girlfriend's or a wife's infidelity ironically results in absolving him of an obligation to support a child. Plenty of putative fathers have been shockingly misled by dishonest mothers who either do not want to admit to infidelity or simply do not want a relationship with the real father. Sometimes, the ability to contest paternity has been waived, but you should discuss pursuing a paternity test with your attorney.

Third, although the obligation to support technically starts at birth, if the mother conceals the existence of the child from the father until years after birth, most courts will not calculate child support arrearages until the first time a father discovers that a child might be his.You should work with your attorney to determine the possible dates at which your obligation began so as to reduce your unpaid arrearage. (Please note that the gender-specific use of pronouns here are not intended to be sexist. Instead, they simply reflect the fact that it is pretty darn difficult to conceal a child's birth from a mother.)

Fourth, to the extent that one parent did not pursue the other for child support for years, a court usually will not impose a windfall child support award to a custodial parent who sat on that right. In such cases, enforcing the full amount of arrearages no longer would work to the child's benefit, but instead imposes an undue hardship upon one parent for the benefit of the other parent. Again, courts want an honest obligor to be able to fulfill his obligation, not whimsically send people to jail for obligations about which they knew nothing until enforcement arose.

Finally, a court may decline to enforce a child support obligation if the obligor affirmatively proves that he really and truly is unable to pay support. However, this affirmative defense does not amount to the obligor merely claiming that he cannot afford it. In order to prove this affirmative defense, an obligor must prove the following:

  1. He lacks the ability to provide support in the amount ordered;
  2. He lacks any property that could be sold, mortgaged, or pledged to raise the funds;
  3. He actually attempted to borrow the needed funds (say, from a bank, credit cards, and relatives); &
  4. He knows of no other source from which the money could be borrowed or legally obtained.

As should be obvious from the specificity of each element, this affirmative defense is difficult to prove and was designed to be difficult to prove so as to apply only in the most extreme cases of hardship.

There are other defenses that might arise in your case that you should discuss with your attorney. However, if you knew about your child and just sat idly by without supporting the child, then a court will not have much mercy on you. Child support judges constantly and frequently admonish such parents that they "should have known better" and should not have been spending the money they should have been paying toward child support: it is as if they were spending someone else's money. If you are in such a situation, you should start financial planning and budget your money so as to prepare for the inevitable day when you must pay up. No amount of legal trickery will get you off.

Please contact us to further discuss any questions you might have regarding child support in Texas.