Can a Court deviate from the statutory child support guidelines in Texas?
The Texas Family Code provides a formula for calculating child support. Courts presume this formula is in the best interest of the child, which means in most cases the Judge is NOT going to deviate from those guidelines. However, in those circumstances where a Court is asked to determine whether it would be appropriate to deviate from the child support guidelines, the Judge will consider the factors found in Texas Family Code §154.123:
the age and needs of the child;
the ability of the parents to contribute to the support of the child;
any financial resources available for the support of the child;
the amount of time of possession of and access to a child;
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;
child care expenses incurred by either party in order to maintain gainful employment;
whether either party has the managing conservatorship or actual physical custody of another child;
the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
the expenses for a son or daughter for education beyond secondary school;
whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
provision for health care insurance and payment of uninsured medical expenses;
special or extraordinary educational, health care, or other expenses of the parties or of the child;
the cost of travel in order to exercise possession of and access to a child;
positive or negative cash flow from any real and personal property and assets, including a business and investments;
debts or debt service assumed by either party; and
any other reason consistent with THE BEST INTEREST OF THE CHILD, taking into consideration the circumstances of the parents.
For example, let’s consider a situation where the primary conservator moves out of state. This would significantly increase the costs the non-primary conservator must incur to exercise their period of possession. The non-primary conservator must purchase a plane ticket for themself and the children unless the children are old enough to fly as an unaccompanied minor. In this situation, a Court MIGHT consider reducing the non-primary conservator’s child support obligation in order to offset some of these additional travel costs.
Conversely, a court MIGHT consider increasing child support in a situation where one party has possession of the children significantly more than the other. When one party chooses not to exercise possession and access, this increases the financial burden on the conservator who has the children 100% of the time.
It is also important to note that parties can always agree on their own to deviate from the child support guidelines. Absent such an agreement, the court will only take into consideration the factors outlined above.
Knowing the reasons why a particular Judge may or may not deviate from the child support guidelines can be very important. Make sure you consult with an experienced family law attorney who regularly practices in the county that your matter is located to see if your case might justify a child support deviation.
Do you need to get a child support order in place or modify your current order? Give us a call today at (281) 768-4071 to schedule a consultation!