Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

Family courts, in determining a the obligor parent’s child support, look to specific data including the obligor’s most recent pay stubs and two previous year’s tax returns. This data usually provides an accurate indicator of the obligor’s net monthly resources. After the net monthly resources are determined, a multiplier is applied based on the number of children before the court, and if applicable, the number of the obligor’s children who are not before the court (i.e., children from previous marriage). 

While some obligors have a fixed salary, their income may have significant fluctuation, and may be less predictable. Examples include sales reps who work on commission, real estate agents, persons who regularly work overtime, and the self-employed. In those circumstances merely looking at a 2-3 recent pay stubs or recent tax returns (especially if the obligor hasn’t filed a tax return for several years) may not provide an accurate picture of the obligor’s net monthly resources. Under such circumstances, there is case law supporting averaging the obligor’s income for calculation of child support. A recent opinion pending publication by the Texas 14^th Court of Appeals supports this approach. 2008 WL 1838023; Swaab v. Swaab, -- S.W.3d -- (Tex. App. – Hou. (14^th Dist.), no pet history). There is authority which supports averaging a parent’s income for as long as a ten year period to determine retroactive child support. See In re Sanders, 159 S.W.3d 797, 801 (Tex. App. – Amarillo 2005, no pet.). 

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Question: I receive Worker's Compensation benefits from a job accident I had. Does this amount count in my income for calculating child support?

Answer: Yes, benefits received from worker's compensation is considered as income for the purposes of child support determination. Texas law includes income from all sources to determine a parent's child support obligation. About the only benefits not included are TANF.

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Assuming that you are appointed as the managing conservator with the exclusive right to receive and disburse child support for the benefit of your children, the court will order your husband to pay child support regardless of his employment status. Even if your husband is unemployed, the law presumes a parent can at least work 40 hours per week at minimum wage. The court will likely inquire into why your husband left his job and the timing of that decision. If the court finds that he is intentionally unemployed or underemployed, then the court may determine the child support obligation based on his previous employment. 

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Federal law allows states to collect income tax refund checks from parents who are behind in their child support. If you and your spouse filed a joint federal tax return, and all or part of refund was intercepted to pay for your spouse’s past-due child support, you may be an injured spouse and may be eligible to file an Injured Spouse Claim with the I.R.S. You can make an injured spouse claim if you are not legally obligated to pay the past-due child support, and if you made and reported income and payments, such as federal income tax withheld from your wages or estimated tax payments. During the tax year, if you were a resident of Texas, a community property state, you are eligible to file for an Injured Spouse Claim even if you did not report any income and payments on your tax return. You can make an Injured Spouse Claim by filing IRS Form 8379. For each year that you meet the conditions of an injured spouse, you can file IRS Form 8379 with your joint tax return or amended joint tax return, or you can file it afterwards by itself.

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One question that I am frequently asked is whether or not an ex-husband or ex-wife can "garnish" a new spouse's wages or assets for back child support.  The answer is NO!  If the obligor parent remarries, his/her new spouse is not liable for current or back child support payments.  In fact, the courts cannot consider the wages of a new spouse in calculating child support.

There is, however, one caveat.  If you and your spouse file taxes jointly and you expect an IRS refund check, the Texas Office of the Attorney General is entitled to divert your spouse's portion of the refund to satisfy a child support arrearage.  If you think this might be a problem for you and your spouse, speak to your tax advisor about filing separately. 

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One of the recurring questions I receive from clients deals with child support and visitation, and it goes something like this – “I pay child support but the other parent doesn’t let me see my son/daughter. Do I still have to pay child support?” The answer is always, yes.

While it seems unjust to be denied access to your child despite the fact that you pay child support, that is not a basis to withhold support.  First, visitation and child support are mutually exclusive issues, and second, withholding support only hurts the child. 

If the custodial parent is denying access to the child, you may seek to enforce your existing court orders allowing possession and access to your child, or you may file suit to request possession and access, known as a SAPCR (Suit Affecting the Parent-Child Relationship). 

Remember, it is also unlawful for a custodial parent to deny possession and access based on the other parent owing back child support. 

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One of the many points of contention for divorced parents is the children’s medical expenses. However, with a little advance planning and organization, much of this controversy can be avoided. 

Whether you are the primary custodian or the non-primary custodian, the starting place is your final decree of divorce. Your decree should include a section that spells out the provisions for health care. Within that section should be precise language stating how co-payments, out of network services, and uninsured medical expenses are to be handled between the parents. Your decree may differ, but usually, the parents split the cost of any medical co-payments, prescription drugs, and uninsured medical bills. 

After reviewing your decree to understand the rules, the next step is to keep good records. If you take the child to the doctor, always request a receipt that clearly shows the cost for the office visit or service, the amount of the co-pay remitted (if any), and the amount to be submitted to the insurance carrier. If you are the parent who took the child to the doctor, then keep a copy of your canceled check or credit card statement to show payment was made. 

An area where I see many of my own clients go off track is notification of the other parent. Do not rely on just verbal notification to obtain reimbursement, and above all do not make your children the messenger that one parent owes the other. Also, do not keep a backlog of these bills and/or send them on a sporadic basis. Instead, provide copies of the billing statements, prescription receipts, etc. to the other parent on at least a monthly basis so he/she knows what was provided and how much he/she must pay. If you anticipate difficulty in getting reimbursed for medical expenses, then it is critical to send copies of all documentation via USPS First Class Mail and via USPS Certified Mail, Return Receipt Requested. If the other parent does not pick up certified mail, and if the regular mail was not returned to sender for a bad address, then the presumption is that the parent received the bills. This is very important evidence should you need to file an enforcement action against the other parent.

To reiterate, the keys are:  (1) knowing the rules established in your divorce decree, (2) keeping good records, (3) communicating effectively, and (4) maintaining proof of those communications.    

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Recently I learned that it’s standard operating procedure for banks to retain customer account records for only seven years. Some clients have child support obligations that run up to 18 years, so the moral of this story is not to rely on the bank for proof that you paid child support. Be a geek and wear both a belt and suspenders!   

It’s rare to get a bank statement with your actual canceled checks anymore, but most banks at least provide scanned images. Hold onto these records in your safe deposit box or place where you keep important documents until after your final child support payment is made and an account audit shows a zero balance.

Just this month a client who religiously paid child support (directly to his ex-wife rather than the registry), was served with an enforcement action after his child graduated high school. After pouring through years of canceled checks and statements, we ended up proving the majority of the payments were made. But, it put the client in a bad position to scramble for old documents on short notice. 

The other moral to the story is not to make child support payments directly to the custodial parent. 

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One way clients get off track with child support is by making informal payments to the custodial parent, rather than making payments through the local child support registry, or the Texas State Disbursement Unit (SDU). 

It is hard to say “No” when the custodial parent requests or demands child support money on the spot (often in the presence of the child) to buy him/her a new pair of soccer cleats, a cheerleading uniform, etc. However, to keep yourself on track with the SDU, just say NO – unless you’re okay with never getting credit for the payment.

When the obligor pays cash directly to the custodial parent, there is no method for that payment to be accounted for by the SDU – even if the custodial parent provides you with a receipt. For all practical purposes, it’s as if that payment never occurred. 

Later on, if the custodial parent seeks enforcement of child support through the Office of the Attorney General or through a private attorney, there is no proof the obligor made those cash payments. When I explain this to clients, they feel cheated and upset, often citing the “do right” law. Unfortunately, these clients don’t appreciate the formalities of evidence and the legal system. What is acceptable in the every day world fails to meet legal standards in court, and that’s what counts in child support enforcement actions. 

If the custodial parent needs extra cash for child related expenses that crop up, it’s best to make an extra payment through the local registry or SDU. That way, the parent’s child support account is promptly credited with the money, and there is an official record of the payment. 

Of course, there are times when child related expenses can’t wait. Just beware that if you pay child support outside the SDU, be prepared not to receive any official credit for it in court. 

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When a family court sets child support, the parties’ and their attorneys are responsible for establishing an account with either the local child support registry or Texas Child Support State Disbursement Unit (SDU) in San Antonio, Texas. A central purpose is to provide a neutral third party to monitor the obligor’s payments and report arrearages to the Office of the Attorney General. While many of my clients groan about paying child support through the SDU (or through wage withholding) rather than directly paying the custodial parent, I remind them that the account eliminates future disputes between the parents, if used properly. 

Child support registries and the SDU are run by humans, and as we know, humans are subject to making mistakes. Whether you are the child support obligor or obligee, I highly encourage you to request an audit of your child support account at least every two years. This is as important as checking the accuracy of your credit report on a regular basis. 

If an error is made in the account, it is far better to clear it up sooner rather than later. Little is as frustrating as pouring over pages of child support history and trying to reconcile obligations, credits, missed payments, and interest charges. 

Another quick check is to review your pay stub deductions. If you are the obligor parent, verify that your employer is deducting the correct amount from each check. If the employer is not deducting enough, it is ultimately the obligor’s responsibility to make sure the proper amount is paid. 

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In the Houston area the Harris County Child Support Registry, Office of the Attorney General, and Harris County Domestic Relations Office enacted the FOCAS Program.  FOCAS stands for Focus on Collections and Services.  A main objective of the FOCAS program is to monitor the collection of child support obligations from the non-custodial parent and to contact him/her if he/she falls behind in child support payments. 

The FOCAS program's services also include locating the non-custodial parent, enforcing existing child support orders, enforcing medical support orders, and even collecting child support through the interception of IRS tax refunds. 

For more information on FOCAS, visit www.hcdistrictclerk.com/Child_Support/focas.aspx

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Whether you are the party paying child support (the obligor) or the party receiving child support (the obligee), there are times when you will need to obtain information on your account, such as a history of payments, or if there is an amount in arrears. 

To contact the Harris County local child support registry, you may visit the ground floor of Family Law Center located at 1115 Congress, Houston, TX 77002 between the hours of 8:00 a.m. and 4:00 p.m. Monday through Friday, contact them by phone at 713-755-607, or visit the web site at www.hcdistrictclerk.com/FAQ/faq.aspx#CS

I highly recommend visiting the web site before making a trip downtown.  You may be able to take care of your issue(s) on-line.  If you must go to the office, the web site will give you an idea of what information and/or documents you should take with you before going to the Family Law Center. 

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The Federal Office of Child Support Enforcement provides an excellent informational web site to assist parents and child conservators locate parents who have failed to meet their child support obligations. With the advent of the information age and data sharing among states and the federal government, tracking down child support evaders has gotten more efficient. For more information, see http://www.acf.hhs.gov/programs/cse/newhire/  

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Due to new rules requring persons traveling from the US to Mexico, Canada, the Caribbean and South America to have a passport, child support registries across the country have seen an uptick in collections.  According to a recent article published in the New York Times, the US State Department will deny a passport to a parent who owes $2,500 or more in unpaid child support.  When a child support obligor needs to travel for business or pleasure, it's amazing how quickly the obligor can come up with the money.  For more information, see the New York Times article at http://www.nytimes.com/aponline/us/AP-Passports-Child-Support.html?ex=1187841600&en=34cd324319326e6a&ei=5070&emc=eta1. 

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An old adage says that only two things are certain in life – death and taxes. If you’re required to pay child support under a Texas court order, you’d better make those three things – death, taxes, and child support.

The legislature created a new section to the Texas Family Code – Section 154.015, which becomes effective September 1, 2007. If the parent obligated to pay child support dies before his/her child support obligation terminates, the remaining obligation becomes accelerated and the unpaid child support becomes a claim against the estate. 

Though most conscientious parents want to ensure the stability of the children’s future in the event of their death, it will be interesting to see how the application of this new family code section plays out in both family court and probate court. 

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The 80^th legislative session yielded over 300 changes to the Texas Family Code. Among the many changes which take effect September 1, 2007, this entry deals with when the statutory duty to support one’s child(ren) terminates.

Generally speaking, the child support obligation terminates upon the marriage of the child, the removal of the child’s disabilities for general purposes, the death of the child, the death of the parent obligated to pay support, or if the child is over the age of 18 and is not attending or enrolled in high school. There were two substantive changes to Tex. Family Code Section 154.006. The first change eliminates a termination event, and the second creates a new basis for termination. 

First, as of September 1, 2007, the death of the obligor is no longer an event terminating the duty to pay child support. The obligation to remit unpaid child support, as well as future child support, becomes a debt of the obligor’s estate. Prior to the update, savvy practitioners included language in final orders requiring the obligor parent to obtain sufficient life insurance to cover child support in the event of his/her death; however, this is now addressed by statute. 

Second, once the obligor’s child enlists in the armed forces of the United States, the child support obligation terminates on the date the child begins active service. 

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One of the most frequent inquiries my firm receives come from parents in dire need of child support and medical support, but who cannot afford the services of an attorney. Though my firm takes on a certain number of pro-bono cases each year, unfortunately, we cannot accommodate every request. 

Many parents who contact us do not realize that they may seek the assistance of the Texas Attorney General in collecting child support from the non-custodial parent. To seek services through the Texas Attorney General one may call 1-800-252-8014 or visit the web site at http://www.oag.state.tx.us/cs/parents/apply_services.shtml.  

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During the 80^th Legislative Session, there were some 375 updates to the Texas Family Code. One of the most important revisions impacts the calculation of child support. 

Current statue requires the obligor parent to pay a percentage of his/her net monthly resources for the support of the child(ren). Presently that amount is capped at the first $6,000.00 of the obligor parent’s net resources. Beginning September 1, 2007, the new cap amount will be $7,500.00. 

For example, the maximum child support for two children is presently $1,500.00 per month, but that maximum amount increases to $1,875.00 per month on September 1, 2007. 

The Texas legislature also provided that this amount is to be adjusted for inflation every 6 years. 

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Parents with minor children who rely on timely payment of child support have another option besides waiting on a check from the Texas State Disbursement Unit.  Parents receiving child support have the option of receiving payments electronically deposited into a debit card account.  For more information on how to qualify for this service, please visit this web site:  www.hcdistrictclerk.com/child_support/Texas_Debit_Card.aspx

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