Texas family law attorneys are keenly aware of the child support percentage guidelines set out in the Texas Family Code, which prescribe a mathematical formula for calculating child support. These percentage guidelines come up in virtually 100% of all family law cases involving issues of child support.
The statutory guidelines set out in §154.123 of the Texas Family Code are legally presumed to be in the best interest of the child.
In Bexar County especially, attorneys are often resigned to the premise that "child support is what it is," and that not much can be done about it.
However, the truth of the matter is that the Texas Family Code contains a number of provisions allowing a judge to set child support above or below the statutory guideline amounts. §154.123 of the Texas Family Code, which is entitled "Additional Factors for Court to Consider," sets out 17 separate things the Court must consider in determining whether application of the guidelines would be unjust or inappropriate under the circumstances.
The 17 factors the Court must consider are:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the
support of the child;
(3) any financial resources available for the support
of the child;
(4) the amount of time of possession of and access to a
(5) the amount of the obligee's net resources,
including the earning potential of the obligee if the actual income
of the obligee is significantly less than what the obligee could
earn because the obligee is intentionally unemployed or
underemployed and including an increase or decrease in the income
of the obligee or income that may be attributed to the property and
assets of the obligee;
(6) child care expenses incurred by either party in
order to maintain gainful employment;
(7) whether either party has the managing
conservatorship or actual physical custody of another child;
(8) the amount of alimony or spousal maintenance
actually and currently being paid or received by a party;
(9) the expenses for a son or daughter for education
beyond secondary school;
(10) whether the obligor or obligee has an automobile,
housing, or other benefits furnished by his or her employer,
another person, or a business entity;
(11) the amount of other deductions from the wage or
salary income and from other compensation for personal services of
(12) provision for health care insurance and payment
of uninsured medical expenses;
(13) special or extraordinary educational, health
care, or other expenses of the parties or of the child;
(14) the cost of travel in order to exercise
possession of and access to a child;
(15) positive or negative cash flow from any real and
personal property and assets, including a business and investments;
(16) debts or debt service assumed by either party;
(17) any other reason consistent with the best
interest of the child, taking into consideration the circumstances
of the parents.
If you read these, it is apparent that the Court can set child support above or below the child support guidelines for almost any reason. Of particular interest to me is item no. 5, which states specifically that the income of the obligee (the person who receives child support) is a relevant factor.
The kicker, of course, is that in order to deviate from the statutory guideline amount of child support, the Court must make a finding that the statutory guideline amount is not in the best interest of the child. To do this, the Court will normally have to determine that imposing the statutory guideline amount of support will detrimentally effect the child--not an easy task, especially when you're trying to get support set lower than the guideline amount.
The most often used factor is factor no. 14--the costs of travel in order to exercise possession and access to a child. It is easy for the Court to reduce child support where the child support obligor (the person ordered to pay child support) can convince the Court that imposing the statutory guideline amount of child support will make it impossible for him/her to afford airline tickets to fly the child back and forth (in cases where the parties live long distances from each other). In these cases, the Court will sometimes adjust the child support to account for the obligor's cost of the airline tickets.
The bottom line is this: If you're hiring an attorney to prosecute or defend a child support case, make sure he or she discusses with you the factors in §154.123.
J. Michael Clay is a family law attorney in San Antonio, Texas, whose practice focuses on divorce, child custoday, child support, modification, enforcement, and adoption issues. J. Michael Clay is licensed to practice law in all Texas state courts, and in federal District Court in the Western District of Texas.
Not certified by the Texas Board of Legal Specialization.