Episode 1 - Changes in Texas Child Support Law
Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.
Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast.
Hello there and welcome to the top Texas Lawyers podcast. I am your host, Brian Abercrombie. I'm here with my partner Samuel Sanchez and all around badboy.
And we are going to talk to you about Texas law. And we're going to cover a wide variety of topics on this podcast. Our goal here is to talk about different things affecting the law and different things that might be affecting you. And none nothing on this podcast is designed to be legal advice or replace the advice of a competent attorney. Both Sam and I are practicing attorneys in the state of Texas. And we do have a law firm.
And but we do want to bring you some information and we wanted to talk to you about law. So, Sam, you got to say that.
No. I mean, I think you summarized it perfectly. I mean, we definitely want to give people good information and I think entertain them a little bit. But if they want legal advice, we absolutely want them to reach out to a lawyer and get that excellent legal advice from their attorney.
So we always start out with a little bit of entertaining tidbits. So we'll talk about divorces in the news. So, Sam, you got anything for us?
Yes, in the news, all those break ups, all those people, you know, those those divorces, those separations, I guess the most current one that we want to kind of touch base on. You know, Miley Cyrus, Liam Hemsworth, they were wed December 2018. Seems like they're calling it off. So major problems every time you come into a celebrity's separation, divorce.
But it's just the same as if it were you and I. A lot of the factors play into the same situation.
So I guess Miley's going in there like a wrecking ball has decided it's done. And, you know, a big part of that, I would say, you know, obviously one of the things that in a divorce, we're always going to tell you a good lawyer is going to talk about social media. Presence in the media is important. But, you know, you want to make sure that you're not posting. Things are inappropriate. Recently, Miley was seen kissing another woman on a boat off the coast of Italy, which is great for some people. But in relation to the wars, not so good.
Yes. In agreement with that, I am. That would be that's you know, obviously when you're in the spotlight and anything and most people going through divorces obviously are not in the spotlight. But what you post on social media can't come back to haunt you, especially in a courtroom.
So you've got to be real careful about what you put out there.
Agreed. And so I'm sure that will come back into play in their upcoming divorce proceedings. Didn't seem like her still husband. Now, in California, there is legal separation in Texas. There is not legal separation. So make sure that wherever you are, whatever state you're in, you're talking to your attorney or getting some advice from legal counsel before you decide what you can and cannot do through a separation process, because obviously no one has yet filed for divorce in that case, but I'm sure it will be forthcoming.
So one thing we wanted to talk to you about in this in this podcast is different areas that affect you in Texas or that could affect you. And one of the things that that's a big effect on on people right now is child support. So we we thought this topic would be completely relevant and really, really hit home with a lot of people because there is going to be a change to the child support law coming in September, on September the 1st.
So, Sam, you want to give us a rundown of that? Absolutely.
So it looks like the cap in Texas, we have both a minimum and a maximum. And it may vary by whatever state you're in. We're gonna kind of deal with Texas at the moment. We'll tell you that there is a minimum and a maximum. So the maximum amount in the state of Texas is about to go out. To go up.
Pardon me. To ninety two hundred from eighty five fifty. So the effect of that is obviously if you're a high wage earner, then potentially you may want to finalize your matter before that kicks in. Obviously you don't have a lot of days. We are the 20th and this should kick in September 1st. Twenty nineteen. But if you're able to do so right now, the maximum for one child that you would pay is around seventeen hundred and ten dollars. It's going to go up to about eighteen forty. So if it was two children you're at twenty one twenty one fifty, you're going up to twenty three hundred three children and you're going to go up to twenty seven sixty four children, about three thousand two hundred twenty dollars etc. etc. because those are in five percentage point increases as they calculate those in the state of Texas.
And what a little bit a little bit about the background of this is the Texas legislature a number of years back passed it a child support cap, and at that time the child support cap was seventy five hundred dollars. I think it originally started at five thousand and one up to seventy five hundred. And then it went up to eighty five fifty and now it's up to ninety. Two hundred.
So basically the the the statute that they passed built in a mechanism where the attorney general every so often can go in the attorney general's office for child support division, that is can go back in and modify those child support numbers.
So it is something that we have faced with this as family law practitioners were faced with it every couple of years. They do make an adjustment like this. But as far as the history of child support goes, if we want to. If you want me to give a little background, Sam, I can.
Yeah, please. So basically, child support was originally set up, obviously for the non you know, the non-custodial parent, the parent that didn't have custody to have to pay some money to the custodial parent based on the amount of time that one parent had over the other over the other parent.
So originally when they way back when when they when they first passed these possession orders and things like that in Texas, they made the difference in time was about 20 percent. So they said, OK, we'll make child support, 20 percent of the income above the net income to compensate for that difference in time.
And then for two kids, it's twenty five percent. For three kids, it's 30 percent. And so on and so forth, up to up to I think they don't go higher than 40 percent. Right, Sam? Correct. And so. So basically what's happened over the over a number of years is that the visitation order, the possession order in Texas has been slowly, slowly changed and morphed into where it's getting closer and closer to 50, 50 percent.
So these possession orders in Texas get around forty five to 48 percent of the time now. And then the child support, on the other hand, hasn't changed at all. So you're still paying that, even though you might be closer to 50 percent these days on your possession time, the child support is still still to 20 percent of your net income up to that cap.
Absolutely correct. I mean, the thing that really, you know, you want to make sure is a.
You're going to go through this process. You know, Charles supports a big part of what's going to go forward. Whether you agree to it or not, the law most of the time is going to impose it. So, you know, as we're talking or you're sitting down considering contemplating do I want to in this relationship or even if you're not married. How does that look with children?
Make sure that you do a little bit to figure out financially how that's going to impact you guys are not going to be together as a couple anymore because that financial obligation will follow you.
And let's talk a little. For 18 years. Yes. And let's talk about when child support ends in Texas. And let's talk about, you know, what's the minimum child support? We're talking about the maximum. Let's talk about the minimum. Right.
Yeah, absolutely, so the minimum child support obligation is typically going to be imputed minimum wage 40 hours a week. So, you know, right now that puts the dollar threshold at about two hundred thirty six dollars in taxes for a child support calculation. Now it can go both above the guideline and below the guideline amount based on what's presented to the court. So there is still fact intensive inquiries that a court can consider based on your specific situation as to whether or not they're going to stay below. It might be one hundred fifty dollars based on your living situation incurring expenses, or if you're a multi-millionaire and you're thinking, hey, you know the Capital One child sounds great. Well, just understand that the court can absolutely go beyond that. What would justify that?
Does the court go beyond that? I mean, a lot of a lot of instances.
What are the reasons why a court would go beyond let's say let's say someone is a millionaire and let's say they're a professional athlete. They're a millionaire. You're you have this this child and you've got to pay child support. What's to keep that that child support from being $10000 a month?
Yeah. You know, I mean, it depends a lot of times. As an example, one of the things would be does that child have a particular special need? So as an example, private school might be considered a special need. So if the court looks at it and says you have the ability to pay and have been paying the costs associated with private school and this child is an exemplary student. You know, Mary, embedded in that, the court can use what we called best interests to vary from the guideline and say, no, I want you to pay the private school tuition as support. And we all know private school tuition can be extremely high. So could that be a consideration? Sure. Or let's say your child has special needs. They could be medical. You know, let's say that a child has substantial and significant medical concerns that require heavy medication or, you know, very expensive medication to keep them healthy. And, well, then a court can take into account those kinds of parameters as to whether or not they want to go beyond guideline support for an individual who is a high wage earner and has the ability to pay that they're still going to take into account. Can you pay it? But if you can, you sure want to be careful about who and what you present in front of that court to make sure that you don't walk out with a dollar amount that doesn't feel.
So let's talk about me. Let's talk about let's say I'm in that situation and I'm not a high wage earner, but I got a kid who plays like baseball, play select soccer, and there's all kinds of fees associated with that. What am I looking at there?
Most of the time in a situation like that, they're not really going to go above guideline. You're probably gonna still be within the parameters established by the statute. Now, if you told me that your child is a superstar, you know, he's got the kind of talent he's a LeBron James bully is Sam.
But I'm looking through dad eyes. So.
Well, I believe I've met him. He absolutely is a superstar. So I would say that in that situation, it's absolutely possible the court could look at it and say, you know, is it going to be detrimental, that child? And if so, you've been paying it. Why wouldn't I obligate you to continue to pay part of it or all of it as additional support or above guidelines support. So that can be considered.
So, Sam, you've got a couple of kiddos that are over 18. So let's let's talk about your situation. Let's say, you know, that that, you know, mom wants to get a get child support over the age of 18. What are the circumstances there?
Well, the good news is in the state of Texas, that's not likely to happen. Child support ends at the either the age of 18 age you reach majority or at the time that you graduate from high school. The latter of the two. So whichever happens first is when it's going to last. I'm sorry, I was going to be when that child support obligation ends. Now, could you be obligated to pay child support beyond that age?
Yes. Let's say that during the time that the child was alive, that child develop some type of special need that is going to require a parent to continue to provide care or that child is not going to be able to be self sufficient when they turn 18 and graduate from high school, then yes, absolutely. Child support can go on. It can go into adulthood. It can be permanent depending on the situation.
And the facts that surround each one of those cases is pretty fact specific when you say.
Absolutely. Absolutely. And you know, you're going to want to definitely talk to a lawyer and get some good advice. I feel like those are some of the parameters that you might be dealing with as you go forward in relation to a child support obligation. Call. Talk to a lawyer and get some good.
So let's say I'm a guy and I'm about to go through a divorce. And you know what? What kind of things do I need to be looking at? You know, as far as so, I know what you know, what I'm facing in terms of in terms of child support. I mean, how might how might how do I do the calculation on my own? How do I. How do I figure all that stuff out?
Sure. Sure. I think a big part of it, obviously, is, you know, we use net resources in the state of Texas to establish child support in the way we calculate your net typically as we're going to get your gross. We're going to give Uncle Sam his share.
We're going to subtract in union dues that you might be paying. We're also going to subtract health insurance premiums that are being paid for the child, if you're obligated to do so or you do so through your employment and then the rest is going to stay in for the most part. So everything else that you see in there is now your adjusted net. At that point, you're going to apply the percentages and then you'll be able to kind of calculate a rough estimate.
Unclear, a lot of different Web site, and that includes your fringe benefits, too, that you might receive. Like if you get money for a company car, you get a bonus or you get overtime. Some of that stuff could be calculated. Correct?
Absolutely. And where are we? Well, we see a lot of clients that'll get into trouble is they look at the pure income. They don't look at adjusted amounts for, as you know, as an example, overtime. They're like, well, overtime isn't guaranteed. But the way the court typically looks at something like that is they're going to go back and they're going to say, show me your last three pay stubs, show me your last two years worth of tax statements. And if there is a fluctuation in your income, then a lot of times what they're going to do is create an average and they're going to calculate child-support off of that average. So if you're out there and you're contemplating, you know, this relationship may end. And I'm just sucking up overtime because, you know, it sounds great. And Gravy's always nice to have on top of your meal. Be careful about that situation because as you go and increase your income and it's not guaranteed and then you go in, have child-support calculations done through a divorce or through a suit affecting parent child relationship, then a court can absolutely impute that income on you to create a much higher dollar amount in child support than normally would be the case.
So let's let's talk about when child support can be changed.
Let's say I'm already divorced, I've got my child support order I pay and my my a my child support. I get a big raise at work. When can child support be changed? Is it automatically change or does there. Is there something that has to happen?
Well, there's usually two mechanisms that you're going to be able to do in the state of Texas to modify child support. One is if child support was established through divorce, it's usually going to be set and maintained for a three year period subsequent to the divorce. So for three years, nobody can get in there and change anything either up and up or down unless there's something substantial, significant, somebody loses their job.
There's exigent circumstances, basically. Now pose that it can be modified by either party every year. And so it can be done on motion of either party that says, hey, income has dropped and create income has increased. Typically, that requirement is an increase of 20 percent of the net or a change in the child support calculation of more than a hundred dollars. If you can answer yes to either one of those, you've got legs to stand on and go back to court. Now what happens if neither party is going to go in? But there is a weaselly calling them domestic relation offices and state taxes. So their child support enforcement offices, they're usually in the bigger counties across the state, but they will keep track of child support entry dates. And so they will send out correspondents without anybody asking to each party that says, hey, it's been X amount of times since your child support was entered. Is it time to review it? Do you want us to review it? We can recalculate. And so depending on if either party responds. So if you're the OBL's Gore meaning that you're having to pay the child support, you're probably saying now I've gotten some raises and I'm just getting comfortable. Please don't review it. And the other party said, you know, I think they've gotten some raises and they're buying some cars and taking vacations. Would it be nice to see if it's time to get more child support? Either party can start that process. The office of the OAG does that on their own or what we call legally soon spun pay. And once they do that, then they'll file a request for parties to come in. You guys can negotiate a dollar amount. If it's agreed, then a lot of times they don't care. As long as dollar amounts are right now, move on. But if it's not agreed, then they'll file pleadings for the party that is entitled to child support and try to seek a modification to the quartet of that Latin you're using in there that represents a fancy book learnin sand.
You know, every once in a while they sit in a school and I try not eat all the books.
So let's talk about I have let's say I have five children and, you know, as much as support stay the same all the way through. When is it when is when do I get relief on that?
Sure, sure. There's what we call a step down, typically. Now, this is not something that has to be in place. It's typical means that like by agreement, you might agree to not having to step down and paying the same amount of child support irrespective of how many children. But typically when I said there's going to be an incremental increase based on the number of children by percentage. It's usually 5 percent per child starting at 20 percent going up. Now, if you have children outside of that relationship, meaning that you maybe were previously married or had a child with another person outside of that particular relationship, then there is usually also a reduction by percentage on that side as well. That's going to depend on kind of every Senate, but it's usually two and a half percent reduction. So 5 percent up for every child within a relationship, two and a half percent offset for children outside that relationship. OK, so if you had five children, typically what we're going to do is we're going to say, hey, when the fifth one turns 18 or graduate from high school, the latter of the two, we're going to step that child support obligation down because there's no reason for you to continue to pay that dollar amount if that child is no longer a part of that household.
Child support is you know, a lot of people get confused on this, Brian. I know it's one of the things I hear a lot is I just feel that my child support is not going to my children. Well, unfortunately, in the state of Texas, child support is really for the other parent while it's to benefit the child. It's really for the other parent. The cost difference is based on a disproportionate division of time, typically. And so that cost that dollar transfer from the parent less time to the parent more time. Is that equalization of expenses associated with rearing children? So when you look at it and you say, OK, well, that child no longer live in their will, then I shouldn't be obligated to pay that or the parent dollar. That's where they'll kind of come with that adjustment. But it typically drops 5 percent per child as the child ages out of that.
And then when your last child turns 18, then it goes away completely.
Everybody has a party that's well, most people important.
Let's talk a little bit about the retroactive child support, because a lot of times you see people coming in. Oh, my kid. My kid was five years old. I haven't had you know, I've never been ordered to pay child support, national wants child support.
And now this attorney general's office is coming after this child support is saying, I want I have to pay retroactive child support. What do I do?
Yeah. Wow. I mean, that's a it's a tough spot to be in. I'm not going to lie. You know, the law says that if there is not been a child support order, then the law affords parties the opportunity to go back up to four years in retroactive support if it was due and owing during that time period. And depending on the age of the child and how long that has been, they can even go back and include birth expenses. So that can be, you know, prenatal care, that can be hospital birth expenses that were associated with the birth of that child. So depending on the age of that child, they can go back to some pretty substantial.
And that's one of those things that is within the discretion of the judge to decide. So if you're in front of a judge and the judge is making a ruling on that, they're going to look at things like how much you provided to the child, if you provided diapers or formula or gave that child some form of support over the years, that maybe it wasn't monetary, but maybe it was helpful, you know, that the judge can can decide what that retroactive number number is. And if and if you're if you've been helping out, if you've been there and you've been doing things, then you're likely to get a little bit of relief there, I would think.
Yeah, I would absolutely recommend that if a client's in a situation where they're going to have a child and they feel like, hey, you know, what's the best thing to do? It's obviously the active and involved in that child's life. They can and they want to be. If they don't, then they really need to seek the advice of legal counsel to try to get that situation rectified before they find themselves years down the road with a huge balloon price tag that they didn't expect to see.
Well, let's talk about this, because I get this a lot coming into my office. Is child support negotiable?
Absolutely, absolutely. You know, the good thing about family law and family law and the state of Texas is really based on a foundation of contract law because, you know, if you think about the history of obviously marriage, it's really just a contract between families as to how we're going to pass assets from one generation to the next. Well, that that that fundamental idea still exists in family law. And so you can absolutely contract to pretty much anything that doesn't violate criminal law or civil law. OK. And so in relation to child support, if you guys want to agree that, hey, you know what, child support is going to be zero dollars or child support is going to be 50 percent of what the state guideline obligation is going to be. You can absolutely agree to that.
Now, you just gotta remember, there's still a guy or a woman who's in a robe sitting on a bench who's going to have to sign off on this to make it an order. And judges still have the ability to look at any order that crosses their bench as to whether or not they feel that is in the best interest of children. Most of the time, courts just look at it and they go, hey, yous, I'm off on that. If you guys agree, I agree. Because it makes it easy for them. But there are going to be instances where you're going to want to make sure and I've discussed it with an attorney to figure out the court that you're from and whether or not a court is going to be willing to approve lower amounts. They'll always approve higher amounts. I've never seen a judge do one that it was an agreed higher mountain. Them say no. But, you know, lower amounts below the statutory guideline amount, a lot of times are scrutinized pretty heavily by court. So make sure you get some legal advice before you go and try to do that.
So like I said, I mean, this this is a this is a obviously an area of law that affects many, many people. And it's one of those things that you've got to look at.
And nothing beats the advice of a good attorney who knows this area of law and can and can act, can adequately and answer adequately instruct you and answer your questions.
In addition, and nothing beats a good attorney that can go down and present your case if needs be in front of a court or with the attorney general's office or whatever the case may be.
Because Texas does have some special courts that just handle child support issues. And then you've got a you've got to be you had to be aware of those things and you know, the various pitfalls that can that can happen there. So, you know, without a doubt.
And so one of the things you also need to consider is, along with any child support orders, you always, always consider the possession order and you consider the possession times, because a lot of times in these special special courts that we call, they're called for the courts in Texas. A lot of times they don't talk too much about possession schedules or anything like that. So that's one of the things you really need to talk to a good attorney about is what what your monetary obligation on child support is going to be in addition to what your possession time is going to be, because all of those things, you know, can factor in.
Without a doubt. Without a doubt. You know, I mean, absolutely going to want to know know your arena and know what's in front of you before you walk in.
Well, I think that will wrap us wrap us up for our very first episode. We're going to bring. We're going to be here probably every week bringing you an episode. We're going to talk about different areas of law. So we're not just going to confine this to family law. We're going to talk about maybe some criminal stuff that's that's exciting and important and maybe some probate stuff, if that if that is anybody's interest.
But like I said, we will talk about family law.
We will bring you, you know, some guests from time to time who are experts in the air in various areas of law. And we will have them talk about various areas along that. The purpose of this podcast is that you kind of provide you information and let you know what was going on and that so you can make more informed decisions. And hopefully we're going to try to entertain you a little bit, too, at the same time. So absolutely.
With that, I I will thank you for listening to this very first one. And Sam, thank you for. Thank you for explaining everything we need to know about child support. Well, not everything, but thank you for talking to us.
Now, thank you. And I look forward to kind of the rest of these, I think it's gonna be a blast and we'll see where we go. All right. Have a good one. I think.
Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at astxlegal.com. Once again, that's astxlegal.com. Thank you very much.