One of the reasons why many parents seek to gain a 50/50 split in custody with their co-parent either in a divorce or child custody circumstance has to do with the idea that if you possess your child as frequently as your co-parent neither of you will need to pay child support. Equal possession time should equal no child support, right? While this makes sense on some levels the issue that we need to address in today’s blog post is whether this is accurate.
Whether a 50/50 split in custody means no child support for any parent depends upon many factors. Foremost among those factors are your income and that of your co-parent, how many children are before the court, which parent has the right to determine the primary residence of the kids, and what role both you and your co-parent played in the events that led to your divorce. Each of these factors, and others, will be considered by a family court judge if you and your co-parent cannot mediate your way through the issue of child support.
I think one of the beliefs that people hold onto for dear life as they begin a divorce is that 50/50 custody is supposed to be the perfect setup for families. Everybody will be happy if the kids see both parents for an equal amount of time, right? While this may be true for many families, I have seen it be incorrect enough to bring this to your attention today. Even custody splits are tough to manage, tough to maintain, and may not even suit your children all that well. Just because someone else has benefited from a 50/50 custody split doesn’t mean your child will.
The question of child support in Texas is inextricably linked with child custody. Most importantly, child support is closely linked to which parent has the right to determine the primary residence of your children. From that right flows every other right, duty, and scheduled time of possession. Here are some of the basics about possession and custody that I think are essential for you to understand before we even begin to discuss child support itself.
Custody and child support- what is the relationship between the two?
When it comes to child custody the most important tidbit of information that I can share with you is that there is no such thing in the Texas Family Code as custody. What most people call custody is referred to in the codebook as conservatorship. Custody is such a well-known word that judges and attorneys have taken to using it almost as a catch-all phrase. Custody is meant to wrap into one-word issues related to possession, access, visitation, child support, and conservatorship rights and duties. That is a lot of responsibility for one seven-letter word.
You should expect to be named as a joint managing conservator of your children along with your spouse or co-parent. This is the most common designation of parents during a family law case. Joint managing conservators are the same thing as having joint custody. Joint managing conservators have similar rights and duties compared to one another. Probably the most significant difference between parents who would have joint managing conservatorship-type rights and duties is that one parent will have the right to determine the primary residence of children. Not only does the parent with the right to determine the primary residence of the child able to choose where he or she lives but also to enroll the child in school. This is the crown jewel of rights as far as a custody case is concerned.
What is the relation of child support to custody and visitation?
Let’s examine a bit more closely what the relationship between custody and child support looks like. We can start our examination by looking at the Texas Family Code. In section 153.138 the family code states that the appointment of joint managing conservators does not impair or limit the authority of the Court to order a joint managing conservator to pay child support to another joint managing conservator. This language is a little wonky, but it is important, nonetheless. Let’s break it down into language that resembles English.
All that bit of language means is that the law in Texas treats the payment of child support as a separate matter from conservatorship. While these subjects are related in terms of being a part of a child custody case it does not mean that each subject will be linked in a certain way. Your divorce case may end up with different outcomes on these issues than your friend’s because your circumstances are different. It is possible, was your case made it to a trial, that a judge handed down orders that were surprising regarding the subject. Family law cases are incredibly fact-specific. You cannot assume that what happened in another case will also happen in yours.
Where there is a standard possession order or even an expanded standard possession order whichever one of you or your spouse who is not the primary conservator will have the responsibility to pay child support. Child support, for most people, is calculated based on the guidelines outlined in the Texas Family Code. Your net monthly income is the first part of this equation. Your gross income will be determined (income from all sources) and then a few items will be subtracted from that amount like income taxes. The resulting number will be used to determine child support.
The next part is where the specific circumstances of your case come into play, specifically the number of children that you have before the court. For one child before the court, 20% of your net monthly income will be paid in child support per month. For two children, 25% of your net monthly income will be paid. So on and so forth until you reach a limit of 50% of your net monthly income being ordered for child support. A court will hesitate to have you pay more than that. The Texas Family Code says that for six or more children before the court you will pay no less than 40%.
What about 50/50 custody? Where does that come into play?
As I alluded to at the outset of today’s blog post, 50/50 custody is seen as the holy grail of custody arrangements. I hear from parents with great regularity that their main goal for the custody component to the case is to have a 50/50 split this seems fair in many ways and allows both parents to have sufficient time with the kids. However, there are some things that I would like you to consider before you make up your mind in advance that a 50/50 split in custody is what your children need.
First, even if you attempt to divide the week up exactly down the middle it is almost impossible for both you and your co-parent to be able to share custody of your children on an exactly 50/50 basis. The reality is that kids get sick. Grown-ups get sick. Kids have activities that are just easier for one parent to handle than the other. Kids get tired of traveling constantly from house to house and you may end up taking your kids for longer than a couple of days this week, while your co-parent has the kids longer than the time stated in your divorce decree next week.
My point is that you and your co-parent are going to work together and adjust the custody orders as you see fit based on changing circumstances that you face during the year. This isn’t a bad thing or an unexpected thing. What it means is that you all can create the most intricate custody arrangement and possession schedule ever conceived and circumstances will require that you all adjust those plans. The more intricate your custody plan is the more likely that you all will need to adjust it.
What is best for custody plans, in my experience, is the order that is clear and easy to understand. Whatever your custody arrangement ends up looking like they do not amount to much if you and your co-parent cannot understand what the orders require you to do. Rather, what you want are clear-cut orders where both you and your co-parent understand what your schedule is and what is required of you. Once you get into the rhythm of parenting under a possession schedule you will find that it is easier for you and your co-parent to adjust where need be.
When it comes to child support and a 50/50 split in possession it is not uncommon for whichever parent makes more money to be ordered to pay child support. Let’s think about a hypothetical situation where you earn $5,000 per month and your co-parent earns $4,000 per month. In that scenario, even if you all had a 50/50 split in custody, you could still be ordered to pay your co-parent child support. If you had two children before the court, you could be ordered to pay $250 to your co-parent. I got that number by multiplying .25 (25%) against the $1,000 difference in your net monthly income.
A family court judge may seek to help equate your child’s living environments in your home and your co-parent’s. The simplest way to do this would be to assess child support payments being paid from you to your co-parent. Many circumstances may come into play here that could make a difference in this determination, however. Starting with the fact that you and your co-parent may simply agree that if your incomes are that similar no child support needs to be paid. Dividing their time up equally between you and your co-parent means that both of you bear a substantial burden when it comes to raising your children from a financial perspective.
Ultimately the most important factor in this discussion may end up being whether you and your co-parent can settle your case out of court or are forced to go in front of a judge. If you and your co-parent can settle your case successfully then you all can craft just about whatever child support orders that you would like. If what you decide does not violate the public policy of the state of Texas (meaning that the agreement is unconscionable) you all can chart your path for child support. However, if you go before a judge to have him or her decide then all bets are off when it comes to child support or any other subject related to your case.
Where do you pay child support in Texas?
Now that we have established what guideline levels of child support are, the next logical question for us to address is where the payments are made. For the most part, child support payments are made through the Office of the Attorney General. The OAG keeps track of all payments made and whether you are current on your child support payments.
After your divorce or child custody case if you are the parent who is going to be ordered to pay child support then you will have a wage withholding order attached to the other paperwork which requires your employer to withhold a certain percentage of your pay. That money will be sent automatically to the OAG to satisfy your child support obligation.
This may sound intrusive to some people- myself included. It is weird to have the government get in the way of your earned income (more than they already do). However, there are benefits to having your child support paid in this way. First off, you do not have to worry too much about there being mistakes in payment amount or frequency. Think about it as an automatic deposit into a retirement account. If you had to make those deposits manually the chances of you forgetting or making a mistake when depositing money may increase. Automatic payments of child support through the OAG make life easier.
Next, there will be no question as to what child support amount you owe each month. I don’t know your specific circumstances, but I have worked with many parents who have experienced a situation where their co-parent would ask for $1000 one month for child support and then increase it to $1500 the next month. That increase may have been justified- there could have been a medical bill that needed to be paid or something like that. However, it is very difficult to budget for such a large item when it changes significantly from week to week.
There is no question about how much child support you owe when there is a wage withholding order set up. It is out of sight and out of mind. This allows you and your co-parent to have meaningful conversations when you do talk about other subjects that are more pressing and important than child support. Do not underestimate how great the peace of mind can be when you do not have to go back and forth with your co-parent about money at every opportunity.
It is your responsibility to make sure that the wage withholding order where you are family is current. With many people changing jobs these days you may find that the employer listed on your wage withholding order from last year no longer applies. For this reason, you should contact both the office of the attorney general and your Co-parent to alert them to the change in employment status. The office of the attorney general can assist you in getting a new wage withholding order drafted and set up with your new employer so that you do not miss a beat with your child support payments.
Please bear in mind that just because you have a wage withholding order in place does not mean that you have any less responsibility to keep up with your child support payments. You should create an account for yourself on the website for the office of the attorney general to keep up with your payments and to ensure that you are staying current. It is not an excuse to be able to say that you assume that everything was being taken care of for you due to there being a wage withholding order in place. Rather, take responsibility for your circumstances by staying up to date with everything.
Finally, remember that Child Support is intended to benefit your children. Even though the payments are being made to a Co-parent you should always bear in mind that these payments are especially important for your child in their well-being. it can be frustrating at times to see a chunk of your paycheck being sent to your co-parent. However, it is your children who will benefit from this amount and that is something that should make these payments a little bit easier to tolerate.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.