Hosted By: Diana Shepherd, the Editorial Director of Family Lawyer Magazine, divorcemag.com, and divorcemoms.com
Guest Speaker: Brian McNamara
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Read the Transcript of this Podcast Below.
Diana Shepherd: I’m Diana Shepherd, the Editorial Director of Family Lawyer Magazine and Divorce Magazine. Joining me today is family lawyer Brian McNamara, who is here to discuss child support in Texas. If you’re a Texas parent going through a child support dispute, you should keep watching. In the next few minutes, Brian is going to answer some of the most frequently asked questions parents have about Texas Child Support Laws. Thank you, Brian, for taking the time to speak with us today.
Brian McNamara:Thanks very much for inviting me.
Diana Shepherd: What are the factors determining child support in Texas?
Brian McNamara:That’s a good question. On its face, it’s very simple: we just look at the payer’s income, and we calculate a percentage; however, it can get complicated. Once we know what the income number is, it’s relatively simple to calculate child support. We take the gross annual income and subtract the required social security and withholding for one person claiming one dependent. We subtract any union dues, and any state income tax if it’s paid in another state, and then we take a percentage of the remaining number if it is $9,200 or less. The child support calculation only applies to the first $9,200 per month of net monthly income. That equates to about $145,000 a year, depending on whether someone’s employed or self-employed. For one child, it’s 20%, so $1,840 is the cap for one child. It goes up in 5% increments, so for two children, 25% would be $2,300 a month.
Where it stops being simple is in calculating the income number. If someone has had a salaried job for the last several years, and it’s the same amount every year, it’s a pretty simple calculation. If someone gets bonuses, commissions, overtime, or any other extra income, it gets a lot more complicated because we’re really trying to project future income to calculate child support based on what the income will be in the future. That can be difficult, and that’s where litigation arises. That’s where the arguments happen. But once we settle on what the number is, then the guidelines apply. A judge has discretion to deviate from the guidelines if the proven needs of the child require it, but that is not common.
Diana Shepherd: I just saw that one of the mothers of Eddie Murphy’s children went back to court to have her child support raised from $25,000 a month to $35,000 a month for reasonable expenses. So, if you have a celebrity or a sports figure or something like, that is it possible that they might get those astronomical sums in Texas?
Brian McNamara: Theoretically it’s possible, but it’s probably never going to happen. A judge can exceed the guidelines, like I said, based on the proven needs of the child. If you have a special needs child with expenses, and the resources are there for the payer to pay it, a judge can certainly exceed the guidelines. If you have a child with serious medical issues, for example, that may require a lot of treatment, and the resources are there, the judge may exceed the guidelines. A child could be a genuine sports prodigy with a realistic option for the Olympics. I mean, every parent wants to think their kid can go to the Olympics, right? But if it’s genuine, this kid really has great promise and they need a lot of lessons, we’re paying for coaches because they’re training all the time.
If the child requires a private tutor, and if the parent’s resources are there, a judge could exceed the guidelines. But I don’t see how that could ever get to $25 or $35,000 a month. It’s based on the proven needs of the child, not the parent’s needs. That can lead to unfair outcomes where a payer who has a very high income could be paying less than 10% – perhaps only 5% – of their income in child support because it caps out at $9,200 of net monthly income, which is not the same as taxable income. Then on the other end of the spectrum, a lot of people complain that child support is set too low because it’s only 20% for one or 25% for two children and it doesn’t even cover the kids’ daycare. But I don’t see child support ever getting that high in our state absent some really, really unusual circumstances.
Diana Shepherd: Is child support paid directly from one parent to the other?
Brian McNamara: That’s a good question. A lot of people misunderstand that. No, Texas law requires it must go through the state disbursement unit. It’s a central registry run out of San Antonio. Sometime in the last 20 years, the federal government required states to have a single, central place to pay child support when it’s withheld so that employers know where to send it when they take the money from the paycheck. If it’s a Texas employee, it all goes to this place in San Antonio. So instead of hundreds of places, there are 50 (one in each state). However, Texas law says it must be paid through the state disbursement unit in San Antonio. It can either get there by wage withholding or the payer can pay it directly. Any payment outside of the state disbursement unit is considered a gift.
A judge has the discretion to give credit for child support paid from one parent to the other, but they usually require a high level of proof. It is really unfortunate when you see a payer in court saying, “I gave the other parent numerous checks, but I can’t find them, or my bank has been sold and bought and they don’t have the records.” And the other parent says, “They gave me some money, maybe $1,500,” while the other one’s saying, “It was at least $10,000.” The judge is probably going to give them credit for the $1,500 unless they can produce receipts. Other than that, they still owe all that child support, and they can still go to jail for non-payment. It’s very important that it be paid through the state disbursement unit where they keep official records.
Diana Shepherd: What are the basic expenses that child support is meant to cover?
Brian McNamara: Anything. What I mean by that is there’s no review, and there’s no audit of the parent receiving the child support. They can use it for whatever they wish. If the children are being neglected, the other parent can seek primary conservatorship, which many people would call custody. Sometimes that does happen where the payer of child support says, “The money’s being wasted. The kids are not being well taken care of. They keep coming to me for money for sneakers and money for jeans and money for school supplies. Meanwhile, their other parent is dressing lavishly, and I know they’re using my child support on outrageously expensive clothes or vacations or something.” In that case, the option is to seek primary conservatorship. The judge isn’t going to audit them or check their books to see how they’re spending the money.
However, child support is supposed to cover all of the children’s expenses, and that can put the payer in a difficult situation. If the recipient or payee says, “Look kids, we are poor. I can’t buy you the shoes you need for school. Get them from your other parent.” Then they go to the other parent and say, “I need new shoes for school,” and the payer parent says, “I just paid, $2,000 in child support!” It’s tough to have to say, “Sorry, kid – you can’t have your new shoes just because your other parent says you’re poor.” But yeah, child support is supposed to cover all of the children’s reasonable expenses, and typically, it does. What I described isn’t that common, but it does happen.
Diana Shepherd: When does child support end in Texas? Are there any circumstances under which it can continue until the child has finished college?
Brian McNamara: It ends the later of the child turning 18 or graduating high school. If they graduate high school at 17, support continues until their 18th birthday. If they turn 18 in high school, support continues until they graduate. The judge has no authority in our state to order payment of child support after that. But because the judge has discretion to adjust child support based on the proven needs of the child, it’s unclear if they could order someone to contribute to a college fund while the child is under 18. When I’ve seen that kind of arrangement, it has been done by agreement between the parents. Off the top of my head, I’m not aware of a case where it’s been tested at the Court of Appeals, whether the trial court could order a parent to pay guideline support plus an additional sum into a college fund until the child support stops. But other than that, it stops at 18: there’s no provision stating that you must continue to pay through college. People used to voluntarily agree to do that, and it was enforceable as a contract – but not anymore because college costs skyrocketed. Some people got really burned on that.
Diana Shepherd: We all know that the one constant in life is change, particularly over the last two years, we’ve become really aware of that. Can a child support or conservatorship agreement be changed in Texas after it’s been court-ordered? If so, what are the circumstances under which it could be changed?
Brian McNamara: They can. Obviously, life changes and a court can change an order when it does. To do that, you have to first show there’s been a material and substantial change in the circumstances of the child or one of the parents that necessitate or requires the change. The change in circumstances must be from when the last order was signed or the last mediated settlement agreement was signed, whichever was first. So, a parent can’t just say, “I don’t like the deal I made,” or “I don’t like a decision the other parent made, so I want to change custody.” Unless, of course, that decision has created a material and substantial change in the circumstances.
For example, a parent could decide to pull the kids out of school and homeschool them. That would probably qualify as a material and substantial change in the circumstances of the children that would allow a court to look at modifying child support. Some recent case law affirmed in the last few years states that whatever the trial court changes must be related to the material and substantial change. So, you can’t come to court and say, “I’ve remarried and I want to change custody or child support,” unless you can show that that remarriage somehow relates to a need to change primary conservatorship. You have to show material or substantial change that is are relevant to primary conservatorship or changing child support.
Diana Shepherd: For my last question – and I realize that this might be a little bit like asking “How long is a ball of string?” – how much does a custody case cost, and what factors affect the cost? Realizing there’ll be a range, maybe you could give us the least someone could expect to pay and close to the top end.
Brian McNamara: Here’s the difficulty with that: The only way to bill fairly is by time. I know it’s very uncomfortable for people to not know what it’s going to cost, but we literally do not know what’s going to be required and what’s going to happen. Trying to do it any other way than based on the time spent on the case would be like asking a contractor to build you a house before you have the plans. Tell me what this house will cost, then I’ll show you the plans. And by the way, periodically during construction, someone’s going to come along in the middle of the night and tear part of it down. We don’t know how much, and we don’t know how often, but it’s going to happen. What’s it going to cost to build this house? Of course, a contractor couldn’t give you a reasonable estimate under these circumstances.
There are two big reasons why custody cases are really expensive types of lawsuits. One is modern, the other one’s been around forever. The first is a chronic problem: With most legal cases, you’re looking back on an event and you’re trying to figure out what happened and what to do about it. For example, you’re trying to figure out who ran the red light, who caused the crash, and if there were injuries. Or was there a contract and was it breached and what are the damages? Was a crime committed? If so, who did it?
By the time it gets resolved or goes to trial, a custody case could be very different from when we filed it because these cases are dynamic and they change. Custody gets filed and a previously uninvolved parent changes their conduct – they start going to the children’s extracurricular activities and getting involved with the school. Plus, we have day-to-day issues between the parents where our phone is ringing because somebody didn’t turn over the children when they were supposed to, or the children were picked up sick and the other parent refused to turn over the prescription medicine, and told them to go to the pharmacy and get their own, or whatever the case may be. Those kinds of day-to-day things and changing circumstances increase the cost.
The second more recent factor is the internet and cell phones. Parents used to give us pictures of their kids vacationin a sleeve like you would get from Walgreens or Eckerd’s. They’d say, “Hey, here’s our vacation photos. We had a great time.” Then the lawyer would say, “Go take some more pictures around the house. Take some of your kids playing in the house and having a good time. Let’s show the judge that you have a nice clean house. The kids have their own bedrooms, they’re tidy, and they have a good time playing in the backyard.” Now, we get hundreds or even thousands of photos because people have cell phones and they’re always snapping photos – plus there’s Facebook and Instagram and all kinds of social media. There are hundreds or even thousands of pages of texts, emails and all kinds of other data.
Even at school or the doctor’s office, they’ll ask you questions, they’ll check the boxes on the computer. When they print that it could be 50 pages. If someone had to sit there and write it, it would be two. If they had to type it, it would maybe be five. Clients rightfully expect us to know what’s in the files. We don’t want to get to trial and discover that the client asked us about this text from March. Unfortunately, it was on page 570 of the PDF and we only got up to page 560, so we missed it.
We have a paralegal read every word and highlight what they think is important for the lawyers to look at. They don’t decide, but they can choose not to highlight the ones that are clearly irrelevant. The sheer quantity of information has greatly increased the cost of custody cases. As far as the upper limit, it really depends on people’s resources.
You could spend $100,000 on a custody case. Theoretically, if you made an agreement, you could resolve one for $5,000 if an agreement got resolved quickly. They can commonly go to $25,000 in our office, but it really depends on the resources and the budget. We try to work within the budget, so there may be things we don’t do: Records we don’t acquire, witnesses we don’t depose, and other matters. Maybe we don’t have a psychological evaluation or a psychiatric expert because it’s going to cost $5,000 to $10,000 and the budget is simply not there. I go over all this with clients when they come in; we try to work with them to help keep these costs down and tell them what they can do to reduce the costs.
But ultimately, we have to go through all the material, and that’s a large part of the cost. Depending on how contested a custody case is, it’s certainly possible to resolve one for $5,000. If they’re not cooperative at the beginning, they’re probably not going to reach an agreement quickly.
Diana Shepherd: My guest today has been Brian McNamara, a family lawyer at McNamara Law Office in Kingwood, Texas. Brian is licensed to practice in all Texas courts, including the Supreme Court of Texas. If you are facing child support or a custody conservatorship dispute in Texas, Brian and his team are ready to help. For more information, please visit www.mcnamaralawyers.com. Thanks very much for your taking the time today, Brian.
Brian McNamara:No problem. Thank you for inviting me.
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