Friday, September 6, 2013

Putting a “Cap” on Child Support in Texas

Many people believe that there is a statutory “cap” or maximum amount of child support permitted under Texas law.  This belief is only partially correct.

Texas has enacted statutory guidelines which apply various percentages – depending on the number of children the parent must support – but only to the first $8,550.00 of an obligor’s monthly net resources. See Tex. Fam. Code §§ 154.125 et seq. (before Sept. 1, 2013, the percentages were applied only to the first $7,500).

So, for example, if you receive annual income of more than $102,600.00, your income in excess of that “cap” is not included in determining the amount of child support presumptively owed under Texas statutory guidelines.

However, as mentioned in a previous topic in this blog series, Texas has given its courts some discretion in deciding whether to vary from the “guidelines” amount of child support. As a result, it is possible for a court to determine that an obligor owes additional child support above the presumptive amount in a specific case.

To exceed this statutory “cap,” the court must determine that the child’s “proven needs” exceed the presumptive amount of child support under Texas guidelines. Here, the child’s “needs” are based on the parties’ circumstances and are not limited to basic necessities such as food, shelter or clothing. For example, Texas courts have found that a child’s proven needs may include private school tuition, personal bodyguards, a nanny, music lessons and international travel, based on the family’s lifestyle and particular circumstances.

Another limitation, of sorts, exists under Section 158.009 of the Texas Family Code, which states that no order or writ may direct that an employer withhold more than 50% of an obligor’s disposable earnings. This statute does not limit the amount of child support the obligor may owe, it merely limits the amounts which can be withheld from earnings to satisfy the obligor’s child support obligations. When those obligations exceed the amount that can be withheld from earnings, the obligor remains liable for the unpaid amounts and may begin to accrue arrearages which could extend child support obligations for several years (or lead to other adverse consequences through enforcement actions). In these circumstances, an obligor should consider petitioning the court to modify his or her child support obligations to a level more consistent with the obligor’s current net resources.

By:  Cynthia W. Veidt