Speaker 1: 0:08

Welcome back to the Texas Family Lawyer Podcast. I'm Alex Hunt. I'm the managing attorney at Hunt Law Firm serving the greater Houston area, and today I'm joined by Margaret Tucker, senior attorney at our Katie office. Welcome.

Speaker 2: 0:22

Thank you, thanks for having me.

Speaker 1: 0:24

So let's dive right in. We're going to jump into the top 10 myths busted about Texas child support. But before we get started I want to talk a little bit about child support. How it's established in Texas Makes it very simple.

Speaker 1: 0:38

Whenever there is a primary parent, they typically the one who determines the primary residence of the child. They receive child support from the non-primary parent. The obligor is the parent that is paying child support to the obligee and it's determined by a very simple calculation. You can actually go to the Texas Office of the Attorney General, click on child support and they have a calculator on their website. It's determined by the obligor or the non-primary parent's income and then there are some deductions that are made for how much health insurance and dental insurance is if there's anything like union dues and then there is a calculation for how much taxes is taken out and, depending on the number of children that are both in this case and any other children that the obligor has outside of this case, there's a percentage that's applied and that's the amount of child support that is paid and that's typically established in either a divorce proceeding or a suit affecting the parent-child relationship. And whenever you're setting up paternity there's going to be some sort of child support calculation.

Speaker 1: 1:49

But there are a lot of myths that are surrounding child support and we hear a lot of them when folks come in for consultations. So let's start with the first one. The first myth about Texas child support is that once child support is established, there's no way to change it.

Speaker 2: 2:04

Okay, that's incorrect. So child support can be recalculated. You're supposed to wait three years and they will recalculate it based on your income. Now, good news is, if your income has gone down, it will be less, but bad news is, if your income has gone up, it will be more. So it can be recalculated every three years and the obligee can go to the Office of the Attorney General and get them to recalculate it and they do what's called a child support review and they will recalculate it and you'll have to give your paycheck stubs and that kind of thing and they'll look again at how much you make.

Speaker 1: 2:41

You could also go to a private attorney. I know the Office of the Attorney General. There are some good people that work there, but it is a government bureaucracy and it takes them some time to get things done maybe longer than it would take a private attorney. And so the feedback that we hear from clients and what we see in our practice is that often folks will go to the Office of the Attorney General and they won't hear back or it'll take them months to get what should be fairly simple, something like a recalculation. It might take them a little while. So folks are welcome to come and see us, come to our office.

Speaker 1: 3:15

We can do a simple modification and we don't have to wait for the three years. If you have a change in life circumstances and material and substantial change and your income has decreased dramatically, you can change your child support, because what the court doesn't want is for you to just stop paying or stop paying what you're supposed to be paying, paying a lesser amount, and we really don't want to see that, because if you do that and you're our client, then you put yourself at risk that you might have an enforcement, you might get held in contempt and you might be going to court in an orange jumpsuit. We don't want to see that. We want to handle it at the outset, before it gets to that point.

Speaker 2: 3:54

I would definitely tell people if there is a change in circumstance. Get it done fast 100% Don't wait, because you will be held accountable for anything, so come, get it changed you will be held accountable for anything.

Speaker 1: 4:07

So come, get it changed. So the number two myth surrounding child support that we hear is that there's no way to make sure that your ex will pay his or her child support. That couldn't be more false. There are ways to do it proactively and retroactively. Reactively the first way to do it proactively is to get an income withholding order and when an income withholding order and when an income withholding order is something that's signed by the judge at the same time as a child support order and it is then sent directly from the court to your ex-spouses or the other parents employer and what they'll do is they'll garnish their wages and they'll send it directly to the state disbursement unit.

Speaker 1: 4:45

So say, for example, the child support order says that they have to pay $500 per month and the payer gets paid twice a month. Then they'll take $250 out of each of their paychecks each month, they'll send it to the state disbursement unit and then the Office of the Attorney General will send that to the child support recipient. They'll send it twice a month. They'll send it either through a little reloadable gift card or the better option is they'll send it by direct deposit directly in your account, and the great part about this is this is whether that parent that is paying child support wants it or not, if the court orders it, they're going to be paying it and it's a good way to make sure that, if they are employed, that you know that that money is going to be coming out, and if there is any discrepancy between that amount that's coming out and what they owe, they have an obligation. The child support payer has an obligation to make up that difference and pay it directly.

Speaker 2: 5:41

I mean, I look at it, even if I represent the obligor, you want an income withholding order.

Speaker 2: 5:47

Because the thing is is that you don't want to run the risk of running late on child support. So this way it's taken out of your paycheck every single month. It's off the top and your company is responsible for doing it. Now you need to check to make sure that the income withholding order has gone through and that it's pulling out every paycheck, but then you don't have to worry about it. You're not late, it's always on time and it's off out of your hands. So, as the obligor, I would think you would want it too.

Speaker 1: 6:13

And in the same way I mentioned the state disbursement unit. Tell us a little bit about that, because I think that's good for the child support payer, the obligor, and the recipient, the obligee, to have everything go through the state disbursement unit. Tell us a little bit about that process.

Speaker 2: 6:28

So it is now required that it has to go through them. But it's an address in San Antonio and it's in every decree or sapser that we have, and it tells you where to make your payments if you're going to make them directly. And they are the ones who keep track of everything, and that's the best part to protect both parties. You know, you get a login online for the Office of the Attorney General and then you can see how much is getting paid, when it's getting paid, and make sure that everything's. You know there's no balance, everything's on time, everything's good, and the State Disbursement Unit keeps track of it all. So, as the obligee, if you're not getting paid, then they keep track of it. If you're the obligor, you better be looking too, because you're responsible. If, for some reason, that your job didn't hold it, you're responsible for it. So you need to go on the website and look. But you can see it all, and so that's the best part about it, and so it protects both parties.

Speaker 1: 7:27

So those are the proactive ways.

Speaker 1: 7:29

And then the reactive way if you're not getting paid child support, is that you can do an enforcement, which is simply a petition to hold the other party that's not paying child support in contempt of court for not following the court order.

Speaker 1: 7:43

And that list of payments that you mentioned from the state disbursement unit makes our job in filing enforcements so much easier. And the other thing that list does that the state disbursement unit is keeping track of it is that the state can do certain things that private lawyers can't do as easily. So, for example, if that same example they were supposed to be paying $500 per month and say they didn't pay all year, so they owe $6,000. And then the next year in April they file their taxes, they get a $6,000 refund, the state can automatically come in and can garnish that refund that's going to the child support payer, put it through the state disbursement unit and then pay it out to the child support recipient. That doesn't necessarily in all cases require any type of court intervention. They can just do it and it's because they know what's coming in and what's going out. Tell us a little bit about a child support enforcement and how that process works.

Speaker 2: 8:47

OK, so when we have a obligee come in that we will start the petition for enforcement or the motion for enforcement and we take the activity report that we get from the Office of the Attorney General. It will show what payments were missed, whether it was half a payment or you know full payment, what payments were missed, whether it was half a payment or you know full payment or you know if you're paying medical and dental insurance. It also shows the cash support payments missed or not. So we can get our total from there and then in our petition we plead for every single violation. So if you're late, if you didn't pay in full, you can have on one payment alone, you can have Three violations. So enforcements are nothing to mess with because they carry criminal penalties.

Speaker 1: 9:33

Yeah.

Speaker 2: 9:33

So the problem is is if you are not paying your child support and you're not paying it on time or you're not paying it in full, someone can do an enforcement action against you, and when I say it carries criminal penalties, I mean that the court can put you in jail for it.

Speaker 2: 9:47

So that's why, when we were talking earlier about if you have a change of circumstance or you know some reason you can't pay your child support, you have to go back to court to get it changed If you know, because if you're not, you are held responsible, and you are held responsible until you get it changed. Until there is an order that changes that number, you are responsible for the full number, and so the court can hold you in contempt the other things that we were talking about. The Office of the Attorney General what can they do to not only freeze your taxes, but they can also take away your passport, they can take away your driver's license. There's a lot of penalties that come with not paying child support. I always tell people, whether they're the obligee or the obligor, don't mess with child support, Do not mess with the courts, Do not mess with child support. Pay your child support on time every time and keep track of it.

Speaker 1: 10:45

Keep track of it. Good advice. The number three myth for child support in Texas, much to the chagrin of our child support paying clients, is that overtime doesn't count for child support calculations. Not true.

Speaker 2: 10:59

Not true. So any type of income that you have can count for child support. Now in Texas we do have a cap. We have a max and it's $9,200 a month. So if you are the obligor and you make over that amount, you won't have to pay over that amount. And there's a certain amount for one child or two children, three children. But if you're capped and you're at your max, that is the max. They change the max every few years. We haven't had a change in a while, so it might be happening sometime soon. But if you're not at max and you're paying lower than the maximum amount, it can change based on any type of income.

Speaker 2: 11:40

So if you make overtime, they're going to average it out too. So we have people that try to. Here's one paycheck and it doesn't show any overtime. Well, that's not going to cut it. So if you're an hourly worker or something that can have overtime, we're going to compute any type of overtime, any type of benefits you get, like you're saving money on. You know they give you housing stipends, those kind of things. That money is still sitting in your account. It's going to be considered.

Speaker 1: 12:14

Very good. The number four myth for child support in Texas is that there's only one way to calculate child support in Texas. This is not true and if you look at the Office of the Attorney General's website you will see a child support calculator. They make it as simple as they possibly can. But there are other ways to calculate child support and particularly if you have extraordinary circumstances surrounding your family and surrounding your kids or you have children that have special needs, it's possible that the child support that is calculated under the Texas Child Support Calculator, which is listed in Texas Family Code, is not going to be enough to meet the needs of that child. Perhaps they need additional medical funds, they need therapies, they need specialized education. All of that can be taken into consideration and the court can decide whether they're going to diverge from the child support calculation, and we've certainly had cases like that. It's extremely rare the courts default to the child support calculations just so folks know what to expect. But there's got to be a really good reason. But they will in certain circumstances.

Speaker 2: 13:28

Yes, I mean they can go beyond the child being 18 years old. They look at those kind of things if there's medical needs or how much possession time you have of your child. If you don't see your child and you're not taking them and spending money on them outside of just paying the child support, the court can go past the maximum that you have and the guideline support and order more. Very true.

Speaker 1: 13:53

And we've had clients where we've gone back and we've asked for a modification and we've done that. The child support calculations typically take into consideration that the parent that's paying is going to have the child, say, 40% of the time. But if they have the child 10% of the time, then that means that the primary parent is paying for more meals. Their head is laying on a pillow under their roof more days than not and so logically, it makes sense that they might need to pay a little bit more in child support to that parent. All right, the number five myth about child support in Texas is that my ex can use child support for whatever they want.

Speaker 2: 14:35

So as attorneys we hear things I've heard on the radio. People complain and say you know, I pay my wife child support and she went on a vacation this year and that's where she uses my child support.

Speaker 2: 14:47

You know I always ask them OK, well, look at your child. Do they have shoes on their feet, you know? Are they starving? Are they buying them food? Do they have a backpack when they go to school? These are the things that child support does cover. And so you know, as the obligee, you know they get to live too, they can go on vacations and they can have a life too. Just because you know they receive child support doesn't mean they don't live. But child support, you know they're really.

Speaker 2: 15:17

You know people ask all the time what is child support? The basic answer is it covers, you know, lodging and food and necessities for your child. But it goes on. Kids are more expensive than that, you know. And so I always tell you know people that you know child support.

Speaker 2: 15:34

How many backpacks does your child need in a year? If your child signed up for soccer? How many times can you sign them up for soccer? You know, a lot of times. The primary parent is the one who does that and they do spend more money on the child for things that they need every year and only maybe they only need one backpack. So that's where they spend the money on that kind of thing. So it's not just food and clothing and lodging, it's other things. Kids are expensive and so, but both parties are able to live and be free, and so you know, when they sit there and say she shouldn't be able to go on vacation or he shouldn't be able to go on of, well, I spent of that $500,. I spent $50 for the backpack and I spent $200 for food.

Speaker 1: 16:19

There's nothing like that and no court would expect that either. So it's really just a calculation of how much does the court believe that this person will need under the child support guidelines or, if there's extraordinary circumstances, how much they would need to meet the needs of that child, and then that amount is transferred from the obligor to the obligee and that's really the end of it until it comes time to modify again, and then you can make your case in court again. But obligors or payers should not expect that there's going to be any type of accountability or documentation of how that money is being spent. It's just not the way it works in Texas.

Speaker 2: 17:16

Correct.

Speaker 1: 17:17

All right, the number six myth, and we see this one a lot. Unfortunately, some people take advantage of this myth, but the myth is that 50-50 custody means no child support, and, in Texas at least, that is not true. 50-50 custody usually is one of two ways Week on, week off, where one parent has a child for one week and another parent has a child for another week, or 2-2-3, or some people will call it 2-2-5. But that's where there's two days with one parent, two days with the other parent, and they switch off on the remaining three days, and it essentially works out to 50% of the time with each parent, and a lot of folks will believe that if it's 50-50 custody, it means that there should be no child support. That is just not the way the Texas law is structured, though, and folks need to know that going into court.

Speaker 1: 18:10

There are a number of ways to calculate child support when there is 50-50, but one of the important things to know is that 50-50 custody is not really contemplated in the statute in Texas law.

Speaker 1: 18:23

Texas law is based around the fact that one party is going to get a standard possession order, and so there's going to be first, third and fifth weekend, switching off on the holidays and then one primary parent will have the child during the week, especially during the school year.

Speaker 1: 18:39

There's no nothing in the Texas Family Code about 50-50. But there is something that says that if parents agree especially if they get an immediate settlement agreement for 50-50, then they get to do it, because the parents get to choose if they have the agreement. So the question then becomes how is child support calculated? And typically the way that courts will work this out is that they will take what would the child support obligation of parent number one be if they were paying child support, and what would the child support obligation of parent number two be if they were paying child support? And what would the child support obligation of parent number two be if they were paying child support? And then they subtract them, and whichever parent is making more money is typically the one that is going to be paying child support to the other. Have you seen it calculated other ways, or is that typically the way that it works?

Speaker 2: 19:27

I think that's typically the way it works. I mean, you have to remember that. You know, when I tell people who go to mediation if they're asking for a 50-50, you know if there is one side that most likely would be the primary and the court is going to award child support. So when you're in mediation it kind of is hard to ask for a 50-50 and then say never mind about child support. So you know, even if you went to court and got child support, I'm asking for a 50-50, but no child support. So unless the parties come to an agreement, it's, you know, it's not likely to happen in court because it will be a standard possession order with child support.

Speaker 2: 20:14

So a lot of times you have to remind the person who would be the non-primary parent that this is a negotiation. And so you know, if you're going to get them to do a 50-50, you may have to pay some child support. And so can it be an arbitrary number? Yes, it can be. Parties can agree to something. You know, maybe it was a stay-at-home mom or a dad that was stay-at-home, you know and they do need the extra funds on a 50-50. So if you go to mediation and you settle for it. That is part of the consideration sometimes.

Speaker 1: 20:47

All right, margaret, number seven, true or false? If I pay child support, I don't need to pay anything else.

Speaker 2: 20:53

We get asked this a lot because I'll have people come in and say you know I bought them shoes and I bought them clothes and I bought. You know I paid for soccer and I paid for this. I shouldn't have to pay for child support no-transcript each and every time and most orders will say there's no credit for informal payments. And that's what we mean by informal payments. We mean did you buy the child, you know, shoes? Did you buy the child? You know a soccer season? Did you buy him cleats? Those are all things you're giving to your child and that's wonderful, you know. But it doesn't count as child support. So you can't subtract the amount. You can't get around the amount, pay the full amount, but those are things that you're giving directly to your child. So if you buy them things which I think every parent ends up doing it doesn't count as child support. So you need to buy them the other things, but don't subtract it from your child support payment.

Speaker 1: 22:06

Absolutely. And the other consideration is that medical and dental and vision expenses are also laid out in the order and those are typically shared between the parties. Typically they're shared equally, so each party will be paying 50-50. But that's a negotiating point or, depending on the circumstances of the parties, the court can actually make that skewed to one side or the other. But any unreimbursed medical expenses so I'm talking about co-pays or anything that's not paid for by insurance is going to be in addition to child support.

Speaker 1: 22:40

Under Texas law, all right number eight. Well, you'll know this is a myth as soon as I say it If I don't pay my child support, no one can do anything about it. We mentioned earlier that there are something called an enforcement or motion for contempt where if you don't pay your child support, you'll probably receive either from the Office of the Attorney General or from a private lawyer we handle these all the time and we defend these all the time. You'll receive a petition for enforcement where the other side is trying to get a court to either one, reduce what you owe to a money judgment so that they can go and try to get their money paid, or two, something that can't be done If you don't pay your credit card bill, they can try to get a money judgment. If you don't pay your child support, they could try to get a money judgment, but they can also seek other penalties up to and including putting you in jail offenses is that you have expended every possible avenue to pay that debt.

Speaker 1: 23:51

So I don't just mean you know well, I lost my job and I don't have any money.

Speaker 1: 23:58

I mean you have to show that you have spent every dollar in your bank account and you have to try to show that you have tried to get a loan from every which place you possibly could Family members, banks, credit cards, everything.

Speaker 1: 24:10

It's a pretty high burden, and so there's definitely things that can be done and will be done. And then, in addition to that, the Office of the Attorney General has some special tools that they can use if you don't pay your child support. Some of these are available to private attorneys. The one that I mentioned about taking your tax refund the office of the attorney general can do that. We've done this in a few cases privately, and the attorney general can do it too is if you have a professional license, you can get that license removed or revoked as a result of the fact that you don't pay your child support. So if you're a barber or you're a doctor or you're a lawyer or you're a CPA, your very livelihood could be in jeopardy if you don't pay your child support, and it's something that you need to be very careful about.

Speaker 2: 24:59

And I think you know what people sometimes don't look at is you know it is a lot of money to come out of your paycheck each month and it you know it is a hardship sometimes to pay child support. But the thing that you know I wish people would consider is that you know if you don't pay your child support, then that means the obligee has to pay for everything. So the problem is is that you know the courts look at it like OK, I guess your circumstances are this way, but that just defaults. That means the obligee has to come up with all the money. Where do they get their money from?

Speaker 2: 25:39

And so you know you're hoping that the obligee can take care of the child and so the courts really do not have a lot of sympathy for it. So that's why if you need to go back in and change it, you've got to get it done, because they don't have a lot of sympathy for it. They want to see that you did everything you can and we'll have people come in or we'll be up against obligors that are like I lost my job and so they don't pay anything, or they get a lower paying job and they still don't pay anything and it's like okay, but you were receiving a lesser salary so you needed to pay something. So the courts really are not friendly towards not paying, so you have to do everything in your power to pay that child support. So, even if it's a lesser amount, pay something there's kind of an upheaval there.

Speaker 1: 26:32

The last thing that you want to do is go to court and involve either an ex-spouse or the other parent into this miserable situation. But the sooner you can do it the better. Because if, say, you lose your job in January and you've got $500 a month child support payments to make but you don't go until July, well, the court is not going to go back to January and is going to say well, you didn't have a job, so you don't have to pay anything for those months. It starts when you actually file. So you need to file in January and modify it immediately, because there's no going back in time.

Speaker 2: 27:22

You have a violation against you, yeah, and so I mean, the more violations you have and the you know, unless you can show that you were doing your best to try to pay something, there's just not a lot of sympathy. And so you have to go back in. And the other part to say is it's also 6% interest compounded every month. So when you miss $500 by the next month, now you're already paying, you know whatever? A hundred, few hundred dollars more. So your problem is compounding each and every month at 6%. It is shocking how fast the interest rate you know makes the money so much higher. And you sit there and go oh my gosh, if you had just been able to pay the $500 back then, it was. Now you've got a much larger problem because you know it's $10,000 before you know it. And now you have a problem how are you ever going to pay $10,000? And so nip it in the bud at the very beginning.

Speaker 1: 28:23

Well, not to belabor the point. But number nine is if I lose my job and can't pay my child support, I'm screwed. We talked about that. Definitely not the case. You can go and you can modify. The court is going to adjust your child support if you are truly unable to pay because you lost your job. And you know the court is going to make sure that you don't have these violations that are accruing and accruing. So definitely go back.

Speaker 1: 28:51

The final myth number 10 myth with Texas child support is if I get a lower paying job, I don't have to pay.

Speaker 1: 29:00

And it's a double-edged sword because if you get a lower paying job, the court will certainly adjust your child support.

Speaker 1: 29:07

However, we've heard this from folks before where they say well, fine, I'm a doctor now, but I'm going to go work at Burger King and I'm going to get paid $7.25 an hour, so I'm not going to have to pay you anything for child support. And while we've never had anybody do that, we have had folks that have intentionally lowered their standard of living and lowered the amount of money that they have coming in just to reduce their child support obligation. But there's something in Texas law that accounts for that and it's called intentional underemployment. And if you are intentionally underemployed, if you've got a good lawyer, they're going to argue that you did that on purpose and there's no reason that the person receiving child support should have to bear the consequences of that and they're going to make you responsible for what you should have been responsible for if you kept your higher paying job. We've also had cases where folks have become intentionally unemployed. Tell me a little bit about that.

Speaker 2: 30:06

Well, it's the same kind of thing. I mean you're assuming the court is not going to notice. So you know, the court has seen it all. They've seen people become underemployed. They've had people become unemployed. They again not a lot of sympathy. You're going to have to show the court that you've been doing everything in your power to get a new job, that you've been trying to pay your child support, that kind of thing. But if you can't and you're doing it on purpose what the court does is they will take your old salary and they will set child support based on your old salary.

Speaker 2: 30:55

So now you're kind of in a pickle because, maybe you don't have that same job that you did before and the court is going to set that amount for that higher amount of salary. So there's just not a lot of sympathy. So again, don't play games.

Speaker 1: 31:11

I'd say, overall, spite is probably never a good strategy. Yes, that being said, we have had some clients that have become concerned that they're going to be pinned for intentional underemployment or intentional unemployment when, say, they have a job, but then they decide I'm going to go back to school, I'm going to learn how to be a teacher, I'm going to go to education school, and and though you know, like anything in the law, there are gray areas, there are nuances. We have had success arguing that somebody has, yes, they're getting a lower salary, but it's because they're trying to better themselves or their life situation, or they're finding employment, trying to find employment in an area that just makes them happier. There are situations where I've been able to argue and the court has said that is okay. It's okay to go back to school because you're obviously not doing it to just have to pay less child support.

Speaker 1: 32:06

Well, margaret, thank you so much for joining me. It's always a pleasure and for anybody out there that's listening. If you like this video, please. If you're watching on YouTube, hit the like button below, and if you are watching this on Apple Podcasts or on Spotify or anywhere else that you get your podcasts, please like it, subscribe, give us five stars. We'd really appreciate it. If you're looking for our firm, hunt Law Firm, in the greater Houston area, we've got offices in Katy Cypress, sugar Land and League City and you can find us at familylawyerkatycom or by calling us at 832-315-5494. See you next time.