In Texas courts, his usually depends upon three things: (1) the number of children involved in the Divorce, (2) whether there are any children “outside of the marriage,” and (3) how much you (as the “Non-custodial Parent,” or NCP) earns. The general percentages applied to your “Net Resources” (but not your current spouse’s Net Resources) are as follows:
- One Child 20%
- Two Children 25%
- Three Children 30%
- Four Children 35%
- Five Children 40%
- Six + Children Not less than Amount for Five Children
The percentages are slightly less if you have other children that are “outside of the marriage,” in other words you pay a little less (but not much) if you have children from a prior relationship for whom you also have a “legal duty of support.” If you are paying child support regarding other children, or if you support other children who reside with you, then you would pay a slightly lower percentage of your Net Resources than under the preceding guidelines.
“Net Resources” does not mean “net income,” however. It is not calculated based upon what you actually receive in your paycheck, because you can change this yourself (i.e. – take out more for a 401k contribution, etc.). The Court will calculate this fictional “Net Resources” by subtracting out what a single person taking the standard deduction and one personal exemption would pay in taxes (Social Security and FICA). You can find these amounts in the Attorney General’s Child Support Tax Tables, which is located on their website. The Court will also subtract any amounts actually paid by you for health insurance for the benefit of the Child, but not the portion of your health insurance deduction that applies to your own coverage. The Court will also deduct any union dues that you must pay.
Also, you need to be aware that the Court will consider any other sources of income that you are entitled to receive, including commissions, overtime pay, bonuses, interest on savings, dividends, capital gains, royalty income, net rental income, annuities, pensions, severance pay, retirement benefits, disability or workers’ compensation benefits, social security benefits, and similar sources of revenue. Persons who are self-employed should be aware that the Court will not merely look to your “salary,” if any, but may consider any benefits allocated to you from your business or undertaking, after taking into consideration the ordinary and necessary expenses required to produce such income.
There is a “cap” on the amount of Net Resources to which the foregoing percentage guidelines can be applied. That amount, for cases filed after September 1, 2007 (but before the next cost of living adjustment in 2013) is $7,500 per month. This is the maximum amount of Net Resources that the Court will usually consider for purposes of calculating your child support obligation, even if your actual Net Resources are greater. For example, a person with Net Resources of more than $9,000 per month with one child would generally pay child support in the amount of $1,500 each month, calculated as follows: $7,500 times 20% = $1,500.
Sometimes, the Court will award more or less than the amount calculated under the statutory guidelines, but only in compelling circumstances (this is referred to as a “Variance”). As the name “Guideline” implies, this is the amount that will guide the Court – and the amount you usually will pay.
Retroactive Child Support in Texas
In both Texas paternity cases and other Suits Affecting the Parent-Child Relationship “SAP-CR” cases (including Divorces), a Texas court may order so-called “retroactive” child support, or what is essentially back child support for periods of time in the past where child support was not ordered, but where there was a duty of support.
In a Texas paternity case, absent evidence that the prospective obligor knew about the obligation and “sought to avoid the establishment [of an Order],” the Court will presumptively limit the award of retroactive child support four years of support. Tex. Fam. Code § 154.131. In setting the amount of retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:
- Whether the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;
- Whether the obligor (Dad), had knowledge of his paternity or probable paternity;
- Whether the award of retroactive support will impose an undue hardship upon the obligor or his family, and
- Whether the obligor provided any actual support or other necessaries before the filing of the action.
In ordinary SAP-CR cases under Tex. Fam. Code § 154.009 (a), the Texas Courts can order a parent to pay retroactive child support if the parent:
- has not previously been ordered to pay support for the child; and
- was not a party to a suit in which support was ordered.
Notwithstanding Subsection (a), the court may order a parent subject to a previous child support order to pay retroactive child support if:
- the previous child support order terminated as a result of the marriage or remarriage of the child’s parents;
- the child’s parents separated after the marriage or remarriage; and
- a new child support order is sought after the date of the separation.
In these situations (as contrasted with paternity, above), the Court may order retroactive child support back to the date of the separation of the child’s parents.
It is also significant to note that unless the Texas Office of the Attorney General was “a party to an agreement” which settles past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support when the Attorney General so requests.