Alex Hunt:
Welcome back to The Texas Family Lawyer Podcast. I'm Alex Hunt, I'm the managing attorney at Hunt Law Firm serving the Greater Houston area, and today I'm joined by Margaret Tucker, senior attorney at our Katy office. Welcome.
Margaret Tucker:
Thank you. Thanks for having me.
Alex Hunt:
So let's dive right in. We're going to jump into the top 10 myths busted about Texas child support. But before we get started, I want to talk a little bit about child support. How it's established. In Texas makes it very simple. Whenever there is a primary parent, they typically... the one who determines the primary residence of the child they receive child support from the non-primary parent. The obligor is the parent that is paying child support to the obligee, and it's determined by a very simple calculation.
You can actually go to the Texas Office of the Attorney General, click on child support, and they have a calculator on their website. It's determined by the obligor or the non-primary parent's income. And then there are some deductions that are made for how much health insurance and dental insurances, if there are anything like union dues. And then, there is a calculation for how much taxes is taken out. And depending on the number of children that are both in this case and any other children that the obligor has outside of this case, there's a percentage that's applied, and that's the amount of child support that is paid.
And that's typically established in either a divorce proceeding or a suit effecting the parent-child relationship. And whenever you're setting up a paternity, there's going to be some sort of child support calculation. But there are a lot of myths that are surrounding child support, and we hear a lot of them when folks come in for consultation. So let's start with the first one. The first myth about Texas child support is that once child support is established, there's no way to change it.
Margaret Tucker:
Okay, that's incorrect. So child support can be recalculated. You're supposed to wait three years, and they will recalculate it based on your income. Now good news is if your income has gone down, it will be less. But bad news is if your income has gone up, it will be more. So it can be recalculated every three years.
And the obligee can go to the Office of the Attorney General and get them to recalculate it, and they do what's called a child support review, and they will recalculate it, and you'll have to give your paycheck stubs and that kind of thing and they'll look again at how much you make.
Alex Hunt:
You could also go to a private attorney. I know the Office of the Attorney General there are some good people that work there, but it is a government bureaucracy, and it takes them some time to get things done, maybe longer than it would take a private attorney.
And so the feedback that we hear from clients and what we see in our practice is that often folks will go to the Office of the Attorney General and they won't hear back, or it'll take them months to get what should be fairly simple. Something like a... or recalculation, it might take them a little while. So folks are welcome to come and see us, come to our office.
We can do a simple modification, and we don't have to wait for the three years. If you have a change in life circumstances and material and substantial change and your income has decreased dramatically, you can change your child support because what the court doesn't want is for you to just stop paying or stop paying what you're supposed to be paying, paying a lesser amount.
And we really don't want to see that because if you do that and you're our client, then you put yourself at risk that you might have an enforcement, you might get held in contempt, and you might be going to court in an orange jumpsuit. We don't want to see that. We want to handle it at the outset before it gets to that point.
Margaret Tucker:
I would definitely tell people if there's a change in circumstance, get it done fast.
Alex Hunt:
100%.
Margaret Tucker:
Don't wait because you will be held accountable for anything. So come get it changed.
Alex Hunt:
So the number two myth surrounding child support that we hear is that there's no way to make sure that your ex will pay his or her child support. That couldn't be more false. There are ways to do it proactively and retroactively, reactively. The first way to do it proactively is to get an income withholding order. And when an income withholding order is something that's signed by the judge at the same time as a child support order, and it is then sent directly from the court to your ex-spouse's or the other parent's employer.
And what they'll do is they'll garnish their wages, and they'll send it directly to the State Disbursement Unit. So say, for example, the child support order says that they have to pay $500 per month and the payer gets paid twice a month, then they'll take $250 out of each of their paychecks each month. They'll send it to the State Disbursement Unit, and then the Office of the Attorney General will send that to the child support recipient. They'll send it twice a month.
They'll send it, either through a little reloadable gift card, or the better option is they'll send it by direct deposit directly in your account. And the great part about this is whether that parent that is paying child support wants it or not. If the court orders it, they're going to be paying it. And it's a good way to make sure that if they are employed, that you know that money is going to be coming out. And if there is any discrepancy between that amount that's coming out and what they owe, they have an obligation, the child support payer has an obligation to make up that difference and pay it directly.
Margaret Tucker:
I mean, I look at it, even if I represent the obligor, you want an income withholding order.
Alex Hunt:
Sure.
Margaret Tucker:
Because the thing is, is that you don't want to run the risk of running late on child support. So this way, it's taken out of your paycheck every single month. It's off the top, and your company is responsible for doing it.
Now, you need to check to make sure that the income withholding order has gone through and that it's pulling out every paycheck. But then you don't have to worry about it. You're not late. It's always on time, and it's off... out of your hands. So, as the obligor, I would think you would want it too.
Alex Hunt:
And in the same way, I mentioned the State Disbursement Unit. Tell us a little bit about that because I think that's good for the child support payer, the obligor, and the recipient, the obligee, to have everything go through the State Disbursement Unit. Tell us a little bit about that process.
Margaret Tucker:
So it is now required that it has to go through them, but it's an address in San Antonio, and it's in every decree or SAPs that we have, and it tells you where to make your payments if you're going to make them directly. And they are the ones who keep track of everything. And that's the best part, to protect both parties.
You get a login online for the Office of the Attorney General, and then you can see your... how much is getting paid when it's getting paid and make sure that everything... there's no balance, everything's on time, everything's good. And the State Disbursement Unit keeps track of it all. So, as the obligee, if you're not getting paid, then they keep track of it.
If you're the obligor, you better be looking too because you're responsible. If, for some reason, that your job didn't behold it, you're responsible for it. So you need to go on the website and look, but you can see it all. And so that's the best part about it. And so it protects both parties.
Alex Hunt:
So those are the proactive ways. And then the reactive way, if you're not getting paid child support, is that you can do an enforcement, which is simply a petition to hold the other party that's not paying child support in contempt of court for not following the court order. And that list of payments that you mentioned from the State Disbursement Unit makes our job in filing enforcements so much easier. And the other thing that list does that the State Disbursement Unit is keeping track of it is that the state can do certain things that private lawyers can't do as easily.
So, for example, if... That same example. They were supposed to be paying $500 per month and say they didn't pay all year, so they owe $6,000. And then the next year in April, they file their taxes, they get a 6,000 dollar refund, the state can automatically come in and can garnish that refund that's going to the child support payer, put it through the State Disbursement Unit and then pay it out to the child support recipient. That doesn't necessarily, in all cases, require any type of court intervention. They can just do it, and it's because they know what's coming in and what's going out. Tell us a little bit about a child support enforcement and how that process works.
Margaret Tucker:
Okay. So when we have a obligee come in that we will start the Petition for Enforcement or the Motion for Enforcement, and we take the activity report that we get from the Office of the Attorney General. It will show what payments were missed, whether it was half a payment or full payment, or if you're paying medical and dental insurance, it also shows the cash support payments missed or not.
So we can get our total from there. And then, in our petition, we plead for every single violation. So if you're late, if you didn't pay in full, you can have... on one payment alone, you can have three violations. So enforcements are nothing to mess with because they carry criminal penalties.
Alex Hunt:
Yeah.
Margaret Tucker:
So the problem is, is if you are not paying your child support and you're not paying it on time or you're not paying it in full, someone can do an enforcement action against you. And when I say it carries criminal penalties, I mean that the court can put you in jail for it. So that's why when we were talking earlier about if you have a change of circumstance or some reason you can't pay your child support, you have to go back to court to get it changed. Because if you're not, you are held responsible, and you are held responsible until you get it changed.
Until there is an order that changes that number, you are responsible for the full number, and so the court can hold you in contempt. The other things that we were talking about, the Office of the Attorney General, what can they do too, not only they freeze your taxes, but they can also take away your passport, they can take away your driver's license. There's a lot of penalties that come with not paying child support. I always tell people, whether they're the obligee or the obligor, don't mess with child support. Do not mess with the courts. Do not mess with child support. Pay your child support on time every time and keep track of it.
Alex Hunt:
Yeah.
Margaret Tucker:
Keep track of it.
Alex Hunt:
Good advice. The number three myth for child support in Texas, much to the chagrin of our child support paying clients, is that overtime doesn't count for child support calculations. Not true.
Margaret Tucker:
Not true. So any type of income that you have can count for child support. Now, in Texas, we do have a cap. We have a max, and it's 9,200 a month. So if you are the obligor and you make over that amount, you won't have to pay over that amount. And there's a certain amount for one child or two children, three children.
But if you're capped and you're at your max, that is the max. They change the max every few years. We haven't had a change in a while, so it might be happening sometime soon. But if you're not at max and you're paying lower than the maximum amount, it can change based on any type of income. So if you make overtime, they're going to average it out too.
So we have people that try to, "Here's one paycheck, and it doesn't show any overtime." Well, that's not going to cut. So if you're an hourly worker or something that can have overtime, we're going to compute. Any type of overtime, any type of benefits you get like you're saving money on, they give you housing stipends, those kind of things, that money is still sitting that in your account, it's going to be considered.
Alex Hunt:
Right. Very good. The number four myth for child support in Texas is that there's only one way to calculate child support in Texas. This is not true. And if you look at the Office of the Attorney General's website, you'll see a child support calculator. They make it as simply... simple as they possibly can, but there are other ways to calculate child support.
And particularly if you have extraordinary circumstances surrounding your family and surrounding your kids or you have children that have special needs, it's possible that the child support that is calculated under the Texas Child Support Calculator, which is listed in Texas Family Code is not going to be enough to meet the needs of that child. Perhaps they need additional medical funds, they need therapies, they need specialized education.
All of that can be taken into consideration, and the court can decide whether they're going to diverge from the child support calculation. And we've certainly had cases like that. It's extremely rare. The court's default to the child support calculations just so folks know what to expect, but there's got to be a really good reason. But they will in certain circumstances.
Margaret Tucker:
Yes. I mean they can go beyond the child being 18 years old. They look at those kind of things if there's medical needs or how much possession time you have of your child. If you don't see your child and you're not taking them and spending money on them outside of just paying the child support, the court can go past the maximum that you have and the guideline support and order more.
Alex Hunt:
Very true. And we've had clients where we've gone back, and we've asked for a modification, and we've done that. The child support calculation's typically take into consideration that the parent that's paying is going to have the child, say, 40% of the time.
But if they have the child 10% of the time, then that means that the primary parent is paying for more meals, their head is laying on a pillow under their roof more days than not. And so, logically, it makes sense that they might need to pay a little bit more in child support to that parent. All right, the number five myth about child support in Texas is that, "My ex can use child support for whatever they want."
Margaret Tucker:
So, as attorneys, we hear things I've heard on the radio. People complain and say, "I pay my wife child support, and she went on a vacation this year, and that's where she uses my child support." I always ask them, "Okay, well, look at your child. Do they have shoes on their feet? Are they starving? Are they buying them food? Do they have a backpack when they go to school?" These are the things that child support does cover. And so, as the obligee, they get to live too.
They could go on vacations, and they can have a life too. Just because they receive child support doesn't mean they don't live. But child support, they're really... People ask all the time, what is child support? The basic answer is it covers lodging and food and necessities for your child, but it goes on. Kids are more expensive than that. And so I always tell people that child support, "How many backpacks does your child need in a year? If your child signed up for soccer, how many times can you sign them up for soccer?"
A lot of times, the primary parent is the one who does that, and they do spend more money on the child for things that they need every year, and maybe they only need one backpack. So that's where they spend the money on that kind of thing. So it's not just food and clothing and lodging. It's other things, and kids are expensive. But both parties are able to live and be free. And so when they sit there and say, "She shouldn't be able to go on vacation, or he shouldn't be able to go on vacation because they're receiving child support," that's not true.
Alex Hunt:
Yeah. And one thing that our clients should know or listeners out there is that there's no type of accounting for child support. There's no type of ledger that you need to keep where if, say, you're getting $500 a month, you need to keep track of, "Well, I spent... of that $500, I spent $50 for the backpack, and I spent $200 for food". There's nothing like that. And no court would expect that either.
So it's really just a calculation of how much does the court believe that this person will need under the child support guidelines, or if there is extraordinary circumstances, how much they would need to meet the needs of that child. And then that amount is transferred from the obligor to the obligee, and that's really the end of it until-
Margaret Tucker:
It is the end of it.
Alex Hunt:
... it comes time to modify again, and then you can make your case in court again. But obligors or payers should not expect that there's going to be any type of accountability or documentation of how that money is being spent. It's not the way it works in Texas.
Margaret Tucker:
Correct.
Alex Hunt:
All right. The number six myth, and we see this one a lot. Unfortunately, some people take advantage of this myth. But the myth is that 50/50 custody means no child support. And in Texas, at least, that is not true. 50/50 custody usually is one of two ways, week on, week off, where one parent has a child for one week and another parent has a child for another week or 2-2-3, or some people will call it 2-2-5. But that's where there's two days with one parent, two days with the other parent, and they switch off on the remaining three days, and it essentially works out to 50% of the time with each parent.
A lot of folks will believe that if it's 50/50 custody, it means that there should be no child support. That is just not the way that Texas law is structured though and folks need to know that going into court. There are a number of ways to calculate child support when there is 50/50, but one of the important things to know is that 50/50 custody is not really contemplated in the statute in Texas law. Texas law is based around the fact that one party's going to get a standard possession order, and so there's going to be first, third, and fifth weekend switching off on the holidays.
And then, one primary parent will have the child during the week, especially during the school year. There's no... nothing in the Texas Family Code about 50/50. But there is something that says that if parents agree, especially if they get an immediate settlement agreement for 50/50, then they get to do it because the parents get to choose if they have the agreement. So the question then becomes how is child support calculated?
And typically, the way that courts will work this out is that they will take what would the child support obligation of parent number one be if they were paying child support and what would the child support obligation of parent number two be if they were paying child support and then they subtract them, and whichever parent is making more money is typically the one that is going to be paying child support to the other. Have you seen it calculated other ways, or is that typically the way that it works?
Margaret Tucker:
I think that's typically the way it works. I mean, you have to remember that when I tell people we go to mediation if they're asking for a 50/50, if there is one side that most likely would be the primary parent, then they kind of hold the cards.
Because, if... they know if they don't settle at mediation and they go to court, they're going to be appointed primary, and the court is going to award child support. So when you're in mediation, it kind of is hard to ask for a 50/50 and then say, "Never mind about child support."
Alex Hunt:
Mm-hmm.
Margaret Tucker:
So even if you went to court and got child support, "I'm asking for 50/50 but no child support." So unless the parties come to an agreement, it's not likely to happen in court because it will be a standard possession order with child support. So a lot of times, you have to remind the person who would be the non-primary parent that, "This is a negotiation. And so if you're going to get them to do a 50/50, you may have to pay some child support."
And so, can it be an arbitrary number? Yes, it can be. Parties can agree to something. Maybe it was a stay-at-home mom or a dad that would stay at home, and they do need the extra funds on a 50/50. So if you go to mediation and you settle for it, that is part of the consideration sometimes.
Alex Hunt:
All right, Margaret, number seven. "True or false. If I pay child support, I don't need to pay anything else."
Margaret Tucker:
We get asked this a lot because I'll have people come in and say, "I bought them shoes, and I bought them clothes, and I bought... I paid for soccer, and I paid for this. I shouldn't have to pay for child support." Or if they're paying the person directly, they're mailing in the check to the State Disbursement Unit, they took out that amount. Big myth. Child support is the number that is in the order. You have to pay that full amount each and every time. And most orders will say, "There's no credit for informal payments." And that's what we mean by informal payments.
We mean, "Did you buy the child's shoes? Did you buy the child a soccer season? Did you buy them cleats?" Those are all things you're giving to your child, and that's wonderful, but it doesn't count as child support. So you can't subtract the amount, you can't get around the amount, pay the full amount, but those are things that you're giving directly to your child. So if you buy them things, which I think every parent ends up doing, it doesn't count as child support. So you need to buy them the other things but don't subtract it from your child support payment.
Alex Hunt:
Absolutely. And the other consideration is that medical and dental and vision expenses are also laid out in the order, and those are typically shared between the parties. Typically, they're shared equally. So each party will be paying 50/50, but that's a negotiating point. Or, depending on the circumstances of the parties, the court can actually make that skewed to one side or the other. But any unreimbursed medical expenses, so I'm talking about copays or anything that's not paid for by insurance, is going to be in addition to child support under Texas law.
All right. Number eight. Well, you'll know this is a myth as soon as I say it. "If I don't pay my child support, no one can do anything about it." We mentioned earlier that there are something called an enforcement or motion for contempt where if you don't pay your child support, you'll probably receive either from the Office of the Attorney General or from a private lawyer. We handle these all the time, and we defend these all the time.
You'll receive a petition for enforcement where the other side is trying to get a court to either, one, reduce what you owe to a money judgment so that they can go and try to get their money paid. Or two, something that can't be done. If you don't pay your credit card bill, they can try to get a money judgment. If you don't pay your child support, they could try to get a money judgment, but they can also seek other penalties up to and including putting you in jail.
Margaret Tucker:
Correct.
Alex Hunt:
There are very few defenses. One of the defenses is that you have expended every possible avenue to pay that debt. So I don't just mean, "Well, I lost my job, and I don't have any money." I mean, you have to show that you have spent every dollar in your bank account, and you have to try to show that you have tried to get a loan from every which place you possibly could. Family members, banks, credit cards, everything. It's a pretty high burden.
And so, there's definitely things that can be done and will be done. And then, in addition to that, the Office of the Attorney General has some special tools that they can use if you don't pay your child support. Some of these are available to private attorneys. The one that I mentioned about taking your tax refund, the Office of the Attorney General can do that.
We've done this in a few cases privately, and the attorney general can do it too, is if you have a professional license, you can get that license removed or revoked as a result of the fact that you don't pay your child support. So if you're a barber or your doctor or you're a lawyer or you're CPA, your very livelihood could be in jeopardy if you don't pay your child support. And it's something that you need to be very careful about.
Margaret Tucker:
And I think what people sometimes don't look at is it is a lot of money to come out of your paycheck each month, and it is a hardship sometimes to pay child support. But the thing that I wish people would consider is that if you don't pay your child support, then that means the obligee has to pay for everything. So the problem is is that the courts look at it like, "Okay, I guess your circumstances are this way, but that just defaults."
That means the obligee has to come up with all the money. Where do they get their money from? And so you're hoping that the obligee can take care of the child. And so the courts really do not have a lot of sympathy for it. So that's why if you need to go back in and change it, you've got to get it done because they don't have a lot of sympathy for it. They want to see that you did everything you can.
And we'll have people come in or we'll be up against obligors that are like, "I lost my job." And so they just don't pay anything, or they get a lower-paying job, and they still don't pay anything. And it's like, "Okay, but you were receiving a lesser salary, so you needed to pay something." So the courts really are not friendly towards not paying. So you have to do everything in your power to pay that child support. So even if it's a lesser amount, pay something.
Alex Hunt:
And I know we sound like a broken record, but it's something that child support payers need to know that if something happens to your financial circumstances, you need to go right away. I know sometimes, especially if you lose your job and there's kind of an upheaval there, the last thing that you want to do is go to court and involve either an ex-spouse or the other parent into this miserable situation.
But the sooner you can do it, the better. Because if, say, you lose your job in January and you've got $500 a month child support payments to make, but you don't go until July, well, the court is not going to go back to January and is going to say, "Well, you didn't have a job, so you don't have to pay anything for those months." It starts when you actually file. So you need to file in January and modify it immediately because there's no going back in time.
Margaret Tucker:
You have a violation against you.
Alex Hunt:
Yeah.
Margaret Tucker:
And so I mean the more violations you have, and the... unless you can show that you were doing your best to try to pay something, there's just not a lot of sympathy. And so you have to go back in. And the other part to say is it's also 6% interest compounded every month. So when you miss $500 by the next month, now you're already paying whatever, a hundred, few hundred dollars more.
So your problem is compounding each and every month at 6%. It is shocking how fast the interest rate makes the money so much higher. And you sit there and go, "Oh my gosh. If you had just been able to pay the 500 back then." Now you've got a much larger problem because it's $10,000 before you know it, and now you have a problem. How are you ever going to pay $10,000? And so nip it in the bud at the very beginning.
Alex Hunt:
Well, not to belabor the point, but number nine is, "If I lose my job and can't pay my child support, I'm screwed." We talked about that. Definitely not the case. You can go and you can modify. The court is going to adjust your child support if you are truly unable to pay because you lost your job, and the court is going to make sure that you don't have these violations that are accruing and accruing. So definitely go back. The final myth, number 10 myth with Texas child support, is, "If I get a lower-paying job, I don't have to pay."
And it's a double-edged sword because if you get a lower-paying job, the court will certainly adjust your child support. However, we've heard this from folks before where they say, "Well, fine, I'm a doctor now, but I'm going to go work at Burger King, and I'm going to get paid $7.25 an hour, so I'm not going to have to pay you anything for child support." And while we've never had anybody do that, we have had folks that have intentionally lowered their standard of living and lowered the amount of money that they have coming in just to reduce their child support obligation.
But there's something in Texas law that accounts for that, and it's called intentional underemployment. And if you are intentionally underemployed, if you've got a good lawyer, they're going to argue that you did that on purpose. And there's no reason that the person receiving child support should have to bear the consequences of that, and they're going to make you responsible for what you should have been responsible for if you kept your higher-paying job. We've also had cases where folks have become intentionally unemployed. Tell me a little bit about that.
Margaret Tucker:
Well, it's the same kind of thing. I mean, you're assuming the court is not going to notice. So the court has seen it all. They've seen people become underemployed. They had people become unemployed. They, again, not a lot of sympathy. You're going to have to show the court that you've been doing everything in your power to get a new job, that you've been trying to pay your child support, that kind of thing. But if you can't and you're doing it on purpose, the court's going to hold you responsible for it.
So we've had this happen in court. We've represented people, and we've won on intentional underemployment or unemployment. And what the court does is they will take your old salary, and they will set child support based on your old salary. So now you're kind of in a pickle because maybe you don't have that same job that you did before, and the court is going to set that amount for that higher amount of salary. So there's just not a lot of sympathy. So again, don't play games.
Alex Hunt:
I'd say overall spite is probably never a good strategy.
Margaret Tucker:
Yes.
Alex Hunt:
That being said, we have had some clients that have become concerned that they're going to be pinned for intentional underemployment or intentional unemployment when, say, they have a job. But then they decide, "I'm going to go back to school. I'm going to learn how to be a teacher. I'm going to go to education school." And like anything in the law, there are gray areas. There are nuances.
We have had success arguing that somebody has, yes, they're getting a lower salary, but it's because they're trying to better themselves or their life situation, or they're finding employment... trying to find employment in an area that just makes them happier. There are situations where we've been able to argue, and the court has said, "That is okay. It's okay to go back to school because you're obviously not doing it to just have to pay less child support." Well, Margaret, thank you so much for joining me.
It's always a pleasure. And anybody out there that's listening, if you like this video, please, if you're watching on YouTube, hit the like button below. And if you are watching this on Apple Podcasts or on Spotify or anywhere else that you get your podcast, please like it, subscribe, give us five stars. We'd really appreciate it. If you're looking for our firm, Hunt Law Firm, in the Greater Houston area, we've got offices in Katy, Cypress, Sugar Land, and League City, and you can find us at familylawyerkaty.com or by calling us at (832) 315-5494. See you next time.