Child Support Flashcards
Child Support: Generally
A parent has a duty to support a child until he is 18 or graduates from HS (whichever is later) or until child is emancipated through marriage or removal of disability as a minor. If child is disabled, then one or both parents can be ordered to pay child support even once child becomes an adult. SAPCRs that order child support payments must require withholding form a parent’s salary or wages.
CS: Amount of Child Support
Statutory Guidelines:
There is a rebuttable presumption that the following amounts are reasonable and BIC:
1 child: 20% of obligor's net resources 2 children: 25% 3 children: 30% 4 children: 35% 5 children: 40% 6+ children: Not less than the amount for 5 children
These guidelines only apply to the first $8,550 per month of net resources but court may go beyond if there are proven needs of the child that warrant an additional amount (generally for health, sped, learning disabilities). If court orders support outside guidelines, it must make and enter findings within 15 days after request for such findings is made. If disabled obligor, the trial court must subtract any benefits paid to child as result of obligor’s disability from total due. **If obligor is intentionally unemployed or underemployed, the guidelines still apply to his earning potential.
Net Resources
The statute defines net resources as:
1) Wage and salary income and other compensation for personal services (commissions, overtime, tips, bonuses)
2) Interest, dividends, and royalty income
3) Self-employment income
4) Net rental income
5) All other income actually being received…
In event of remarriage, new spouse’s earnings and investment income are SP and not included in the net resources.
Resources do not include the return of principal or capital, accounts receivable, benefits paid in accordance with federal public assistance program, etc.
CS: Support for Disabled Children
A court may order one or both parents to support a disabled child indefinitely if:
1) The child requires substantial care and personal supervision bc of a mental or physical disability and will not be able to support himself; and
2) The disability exists, or cause is known to exist, on or before the child’s 18th bday
Factors determining the amount of support due a child older than 18:
1) Any existing or future needs of the adult child directly related to mental/physical disability
2) Whether parent pays for or will pay for adult child’s care or supervision, or provides or will provide the adult child’s substantial care or personal supervision
3) The financial resources available to both parents for the adult child’s support, care, and supervision; and
4) Any other financial resources or other resources or programs available for the adult child’s support, care, and supervision
CS: Responsibility of Obligor
A. Upon death of obligor
If an obligor parent dies, the support obligation does not terminate. Instead, the unpaid balance of the support is accelerated and becomes a claim agains the obligor’s estate. If the custodial parent or obligee dies, and the obligor does not become the guardian, the CS payments are made to the child’s new guardian.
B. Upon bankruptcy
Bankruptcy does not discharge a child support obligation for future child support or arrearages.
C. Health Insurance
If an obligor can obtain health insurance at a reasonable cost, a court may order an obligor to provide it unless a party can show why such an order is not BIC. If the obligor does not have access to health insurance at a reasonable cost and the custodial parent doesn’t either, then the obligor must pay the custodial parent for the premiums in addition to the CS.
CS: Modification of Support Order
A. Jurisdiction
For a SAPCR decree to be modified, a motion to modify a support order must be filed in the court of continuing jurisdiction. If the child has resided in a new county for at least 6 months, transfer to the new county is mandatory. A motion to transfer must be filed simultaneously w/ motion to modify the order.
B. Grounds
A court may modify a child support order if:
1) The circumstances of the child or a person affectedly the order have materially and substantially changes; or
2) It has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20% or $100 from the statutory guidelines. **Since court has power to guard BIC, a contractual provision about no future increase in CS is not enforceable as a matter of PP; nor can parents reduce or increase court-ordered CS w/o court approval.
CS: Enforcement of child support
Remedies available if obligor fails to pay CS:
A. Mandatory Withholding from Wages:
- Generally: All final periodic CS orders must provide for mandatory withholding from wages unless good cause is shown or the parties agree otherwise. The mandatory withholding cannot exceed 50% of obligor’s disposable earnings (take-home pay). Investment income or rental income is not earnings so not subject to withholding. A CS order has priority over another order affecting disposable income such as a garnishment or attachment.
- Arrearages: Income can also be held for CS arrearages. A court can order an amount 20% above current withholding or an amount that will eliminate the arrearages in not more than 2 years, whither is faster.
- Self-employed obligor: If obligor is self-employed, a court can order that he post a bond or some other form of security that will be forfeited upon failure to pay CS.
B. Money Judgment
If obligor does not pay CS on time, the amount in arrears automatically becomes a money judgment. A court’s only role is to confirm the amount of unpaid CS and to calculate interest due on that amount. A motion requesting money judgment must be filed no later than 10 years after one of the following dates:
1) the date the child becomes an adult; or
2) the date on which the child support obligation termites under the CS order or by operation of law
C. Suspension of Licenses
If obligor has not paid CS for last 90 days and has been given the opportunity but failed to pay according to an agreed repayment plan, court may issue an order suspending a license. The obligor must be given 60 days notice that license will be suspended. License will be reinstated when arrears paid off. Licenses subject include drivers, hunting/fishing; occupational, or professional.
D. Child Support Lien for Arrearages
A lien equal to the amount of overdue support automatically attaches to the obligor’s real property (except homestead), and to all non-exempt personal property. A CS lien may attach to an account in a financial institution; a retirement plan; and the process of an insurance policy. Lien attaches even if arrearages have not been reduced to a judgment. Lien must be filed w/ county clerk of any county obligor is believed to own nonexempt property; county where obligor resides; or county in which court having continuing jurisdiction has venue.
**A claimant can perfect the lien by filing an abstract of the judgment. If no judgment, claimant can secure a lien by filing a CS lien notice that contains the SAPCR court, case name, and docket number, and identifies obligor/obligee by name/address, and identifies arrearages owed.
E. Lien Foreclosure
Once record notice has been filed with the county clerk through a lien notice or abstract of judgment ,property subject to the lien cannot be sold, transferred, or encumbered. After a lien attaches, a foreclosure action may be brought. After notice to an obligor, the property is subject to judicial sale. The lien may not be released until a claimant signed a release or a court orders release after arrearages have been paid.
F. Notice of Levy on Obligor’s Financial Assets
A claimant may deliver a notice of levy to an obligor’s financial institution to freeze bank accounts, mutual funds, or liability insurance claims. Obligor has 10 days to pay arrearages, make payment schedule, or file suit to contest levy. The financial institution has 15-21 days to pay the amount in the notice of the levy.
G. Contempt
If the obligor violates a court’s child support order, he may face put to 6 months in jail, a $500 fine, or both. In addition, he may be put on probation for up to 10 years. Obligor can use his inability to pay as an affirmative defense.
Note: For interstate enforcement to be valid, the claimant must register a certified copy of the order with a TX court under the Uniform Interstate Family Support Act.
CS: State Grants, Loans, & Contracts
In TX, an obligor is not eligible to receive state grants, loans, or contracts if he is more than 30 days overdue on CS, or is a delinquent obligor who owns at least a 25% interest in a business entity as an owner, sole proprietor, partner, or shareholder.
CS: Interstate Enforcement
A non-Texas support order may be enforced by registering it under UIFSA. After registering, it becomes a Texas support order and is enforceable by all methods listed above.
A support order from another state can be modified by a TX court if:
1) All parties reside in TX;
2) A SAPCR decree court outside of TX no longer has jurisdiction because all parties reside in TX, petitioner seeking modification is a non-resident of TX, and TX has PJ over respondent; or
3) The subject child resides in TX, or a TX court has PJ over one of the parties, and all of the parties consent to modify the court order in a record to a court asserting jurisdiction
CS: Full Faith and Credit
An out of state court’s CS order must be given full faith and credit under the Full Faith & Credit Support Orders Act if
1) That court had both SMJ and PJ over the parties; and
2) The parties were given reasonable notice and opportunity to be heard
CS: Court costs and Attorney’s fees
If the court finds an obligor is delinquent, the court may require an obligor to pay the obligee’s court costs and attorney’s fees for his failure to make CS payments. A court may waive such a requirement if it states the reasons for doing so. If the court determines that costs and fees should be withheld it may order the income to be withheld from obligor’s earnings. However, withheld income is limited to 50% of disposable income, which must first be withheld in satisfaction of current child support and arrearages.
