In the State of Texas and every state in the nation, parents bear the responsibility of supporting their children financially. When the parents aren’t together, one parent generally has a child support obligation. When the obligor – or the parent who owes child support – fails to live up to this financial responsibility, back child support can accrue, and the state can take action.
Better understanding your rights and responsibilities surrounding child support can help you stay on the right side of the law as the obligor and can help you protect your financial rights as the obligee – or the parent who receives child support. Discuss your child support concerns with an experienced Killeen child support attorney today.
Child Support Basics
Child support in Texas is calculated by taking a wide range of financial considerations into account:
Each parent’s income
Each parent’s parenting time schedule – or the number of overnights each parent has with the children
The cost of health insurance for the children and who covers it
Which parent covers out-of-pocket medical costs – and how expensive they are
Each child’s physical, educational, and emotional needs, including any special needs
Travel costs related to visitation with the children
The cost of the children’s daycare
Any additional factors the court deems applicable to the children’s best interests
While a range of factors go into the calculation process, the parent who is the higher earner generally has the child support obligation. When one parent becomes the primary custodian, which means having the children for the majority of the overnights, he or she generally becomes the obligee.
Duration
In Texas, child support is usually ordered until the date that the child reaches the age of 18 or graduates from high school, whichever comes later. Child support can also end when children are emancipated prior to the age of 18 by any of the following means:
If they marry
If they join the U.S military
If they successfully petition the court for emancipation
Under these circumstances, the child is considered capable of managing his or her own affairs, and as a result, the child support obligation no longer holds.
Ending the Child Support Obligation
It’s important to note that, regardless of why the child support obligation ends, it’s the obligor’s responsibility to file a Motion to Terminate Withholding for Child Support – rather than simply stop making payments. If the termination is based on emancipation, the court will require proof at the scheduled hearing.
Just as there are instances in which a parent’s child support obligation ends early, there are also situations in which the responsibility can be extended. For example, if a child has a serious disability that leaves him or her in need of significant care or if the child becomes disabled prior to aging out of child support, the court can order ongoing child support without a definite end date.
What Is Back Child Support?
Back child support refers to court-ordered child support that the obligor failed to pay. In other words, the court ordered child support, but the parent responsible for making the payments failed to do so – or failed to pay all of the child support required.
If your ex owes you back child support, you can seek enforcement through the court, but the path forward is challenging, and having the skilled legal counsel of a dedicated Killeen child support attorney in your corner is always advised.
Arrears
Child support that you’re owed is referred to in legal terms as arrears, and it addresses child support that was ordered by the court but wasn’t paid. Arrears can add up quickly, and once addressed by the court, they are often added as a monthly increase to the current child support payments – rather than being paid as a lump sum.
Other options for enforcing the payment of child support arrears in Texas include all of the following arrangements:
Placing a lien on the obligor’s bank accounts or property
Garnishing the obligor’s Social Security retirement benefits
Intercepting the obligor’s federal income tax returns
Intercepting the obligor’s insurance payouts, civil settlements, or lottery winnings
Legal Consequences for Failure to Pay Child Support
Texas courts can hold someone who has been ordered to pay child support but has failed or refused to do so in contempt of court. A noncompliant parent can also be arrested for criminal nonsupport, a state jail felony that carries up to 2 years in jail and fines of up to $10,000. The court can also revoke the driver’s license or professional license of the parent who is in arrears.
If the Obligor Is Incarcerated
If your ex is incarcerated for any crime, it doesn’t mean that his or her obligation to pay child support or court-ordered arrears ends. In fact, the amount owed will continue to grow if he or she fails to make payments while behind bars or fails to obtain a modification that halts the child support obligation during this period.
Child Support Modifications
If the financial situation of either parent or the needs of the children covered by the child support change substantially, a child support modification that addresses the change in circumstances can be sought through the court. However, the modification can’t be retroactive.
For example, if you knew your ex’s income doubled three years ago, but you didn’t seek a modification at the time, and he or she continued to pay child support based on the prior income, you can seek a child support modification that’s based on your ex’s income starting now, but you can’t seek back child support to make up for the loss you experienced over those three years.
However, if your ex hid the higher earnings from you, the court can take that fact into careful consideration, and it could change the outcome of your case.
Additional Considerations
Child support arrears remain in effect until they’re paid – even if the parent responsible for paying them files for bankruptcy. Further, the State of Texas charges interest on unpaid child support. This consequence means that the longer the obligor waits to cover the arrears, the more he or she will owe in back support.
What Is Retroactive Child Support?
Retroactive child support is very similar to back child support, but it refers to child support payments that were never ordered by the court. These payments are put into effect after the fact. In order for retroactive child support to apply, both of the following statements must be true of your case:
The obligor wasn’t previously ordered by the court to pay child support for the child or children in question.
The obligor was not party to a suit in which child support was ordered for the child or children in question.
When the circumstances listed above don’t apply, the child support sought is back child support – or child support that the court has already established is owed.
Situations in Which Retroactive Child Support Generally Applies
Parents will generally seek retroactive child support when they worked out a payment system between themselves that worked for them and their children – without involving the court.
This situation can occur when couples who aren’t married break up or when a married couple splits but doesn’t divorce. When a married couple who shares children divorces, the matter of child support must be resolved, and a child support order must be entered.
As time passes, the payment arrangements the couple decided on may no longer work, and if the parents can’t reach a mutually acceptable resolution, the obligee can seek retroactive child support to address the financial discrepancies.
How Far Back Retroactive Child Support Can Go
While there is no legal limit regarding how far back you can go when it comes to retroactive child support – and it’s possible to go all the way back to the day you and your children’s other parent separated – most courts draw the line at about four years. However, certain situations are so egregious that the court will look further back.
Such circumstances tend to include the following factors:
The obligor knew about the responsibility of supporting the child financially.
The obligor could afford to support the child financially.
The obligor was especially evasive and made efforts not to support the child financially.
The bottom line when it comes to retroactive child support is that time is of the essence – consult with a practiced Killeen child support attorney today.
Factors that Affect Retroactive Child Support Orders
When Texas courts make determinations about retroactive child support, they take a range of factors into consideration:
Whether or not the noncustodial parent was aware of the financial responsibility to support the child
Whether or not the custodial parent attempted to inform the noncustodial parent of the financial responsibility to the child
What the noncustodial parent’s financial circumstances were over the retroactive period
What the noncustodial parent’s current financial circumstances are
Whether or not the noncustodial parent provided support of any kind – financial or otherwise – over the retroactive period
The degree to which the retroactive child support ordered will impose undue financial hardship on the noncustodial parent
If Your Child Has Already Aged Out of Child Support
If the child you are seeking retroactive child support regarding has already graduated from high school and has already turned 18, it will not bar you from moving forward with your case. The State of Texas allows parents to seek child support arrears for up to four years from the date of the child’s 18th birthday.
The amount of payment that will be ordered and the number of years the court goes back will depend on the unique circumstances of your case.
A Note about Covering Your Children’s College Education
Parents are not obligated to pay for their children’s college education, and as such, the State of Texas does not include related terms in the child support orders they issue. The only exception is when parents have a marital agreement, such as a prenuptial or postnuptial agreement, in place that addresses paying for their children’s college education.
A valid marital agreement is legally enforceable, and any child support terms, including those that address paying for college, will be upheld – as long as the terms exceed the state’s child support requirements. In other words, a parent can’t use a marital agreement to get out of meeting the minimum child support obligation.
As a final note, remember that a verbal agreement regarding your children’s college tuition is far more difficult to enforce than an agreement that’s included in a valid written document. Relying on a verbal agreement – regardless of how friendly your split – could leave your children without the financial support they’re counting on to continue their education.
An Experienced Killeen Child Support Attorney Is Standing By to Help
Child support is an important tool that allows the state to balance parents’ financial responsibility for their children with their ability to pay. Child support is a complex legal matter, and if you’re not receiving the child support ordered by the court or that’s owed to you retroactively, you should seek legal guidance.
Brett Pritchard at The Law Office of Brett H. Pritchard is a compassionate child support lawyer whose decades of impressive experience inform every case he takes on. Our focused legal team is well positioned to help, so please don’t hesitate to contact us online or call us at (254) 781-4222 to schedule your FREE consultation and learn more about what we can do for you.