Child Support Flashcards
- Duty of Child Support (including when it terminates)
- Each parent has the duty to support a child until the child reaches age 18 and thereafter until the child graduates from high school
- Each parent has the duty to support an adult child who was mentally or physically disabled before turning 18, as long as that disability causes the adult child to require substantial care and personal supervision and they are not capable of supporting themselves
- Obligation will terminate when child: marries, joins army, dies, or disability is removed
- Obligation will not terminae at parent’s death. Amount due will be accelerated and taken out of the dead parent’s estate
Order of Child Support
Court may order either or both parents to pay child support
A spendthrift trust can be reached for support payments
- Amount of Child Support
Court will follow statutory guidelines - rebuttable presumption that a support order tied to this table is reasonable and in the best interest of the child
# of Children % of obligor's net resources 1. 20% 2. 25% 3 30% 4 35% 5 40% over 5 Not less than 40%
- Factors to consider when determining child support
- Statutory guidlines
- the needs of the child (like expensive medicine)
- the ability of the parents to contribute to support
- any financial resources available for support of the child
- the amount of possession and access to the child
*Net Resource Cap for Child Support
Net resources caped at $9,200 a month or less
If the obligor’s net resources exceed that amount, the court may order additional support only if the child has special needs and never more than the proven needs of the child
*Net resources” when calculating child support
Includes earned income, passive income, and other benefits
- Retroactive Child Support
Child support guidelines guide the court in determining the amount of retroactive child support, if any, to be ordered
Limit to up to 4 years preceding the petition for support
- Modification of Child Support Order
Court may modify if 1) circumstances have materially and substantially change or 2) 3 years have elapsed since the order was entered or last modified and the amount of support differs from the guidelines by 20% or $100
Court approval required for modification, parents cannot do it themselves
- Enforcement of Support Order
- Mandatory Withholding from earnings for child support
- Contempt
- Suspension or nonrenewal of Licenses and Disqualified from State Loans
*obligee can ask court for these
*Mandatory Withholding from earnings for child support
A final order for periodic child support must provide for withholding from earnings except where good cause is shown or the parties agree otherwise
If person become delinquent- mandatory withholding will kick in if it did not apply before
If self-employed might be required to give bond or other security
*Maximum Withholding
The max withholding is 50% of disposals earnings (take home pay)
Child support withholding has priority over other claims against the obligor’s earnings
- Contempt- for not paying child support
After notice and a hearing, a court order for child support *MAY be enforced by contempt - up to 6 months in jail and/ or $500 fine
Defenses: inability to pay and actual support
TX court will only issue a contempt citation for violation of TX order (unless other states decree has been registered though the UIFSA)
Suspension or nonrenewal of Licenses and Disqualified from State Loans
Court can order a suspension of licenses (driving, fishing, hunting, professional, business, if the obligor is 3 moths or more behind, has been given an opportunity to make payments under a repayment schedule, and has failed to comply with the repayment schedule
- Delinquent Child Support
- Will automatically constitute a final judgment for the amount due and owing
- After hearing, court will enter an order against obligor for the amount determined plus attorney fees, court cost, and 6% interest
Statutory Lien on Child Support
A statutory lien will arise by operation of law for all amount of overdue support
The lien attaches to all real property (except homestead) and all personal property that is not exempt from creditors’ claims
Lien will automatically attach to property acquired in the future as well
Can perfect by filing an abstract of lien notice
After lien attaches and proper notice has been given, a hearing is held where court can order a judicial sale of the property
Uniform Interstate Family Support Act
provides a moth of enforcement and guidelines for modification of support orders issued in another stater country
enforcement: income withholding order may be mailed directly to obligor’s out of state employer
Full Faith and Credit for Child Support Orders
Full Faith and Credit for Child Support Orders
- Holley Factors
determine “best interests of the child”
- the desires of the children;
- the parental abilities of each individual seeking custody;
- the stability of the home;
- the acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one and any excuse for those acts or omissions.
*Intentional unemployment and Underemployment
if obligor is intentionally unemployed or underemployed, child support guidelines are what that person could have paid with their skills and earning potential.
- Obligation of child support at obligor’s death
Obligation will not terminate at parent’s death. Amount due will be accelerated and taken out of the dead parent’s estate
- If unable to pay child support, what should obligor do?
A party who has a child support obligation is required to satiisfy the obligation.
If unable to make child support payments the proper request is a modifcation of child support by
obligor upon a showing that he is unable to make his child support payments, assuming the proper
child support guidelines were followed in the initial order establishing child support.
*withhholding for arrearages
Texas law permits a court to order up to an additional 20% (assuming that the overall withholding is not more than 50% of disposable income) or an amount that would eliminate the arrearages in two years or
less, whichever is less, from the obligor’s paycheck to cover the arrearages.
- Is there a required time for judge to order child support obligor in arrearages to pay it off?
The Family Code gives judges discretion when deciding how to handle enforcement of a child support arrangement, and therefore allowing seven years to repay the child support arrears, while unusual, is not per se improper if it is more feasible for the arrearages to take that long to pay off.
the law attempts to have arrearages erased in as
short of a time as possible though
- unless withholding for arrearages applies
- Is there a requirement for judge to issue findings of fact in child support order?
- if the child support order deviates from guidelines, judge must issue findings of fact as to why that is the case
- If the obligor of child support is in arrears but his children are over 18, is he still required to pay child support?
- Yes, even though he no longer owes child support, he still has a duty to pay the arrears.