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Child Support: How It Can Be Litigated

This article was written by Hance Law Group associate attorney Jonathan James.

Your view on child support is most certainly defined by what side of the equation you’re on. If you pay child support to an ex-spouse, you can be concerned or even alarmed with how much you’re paying, and if you’re receiving child support, you might be similarly concerned or alarmed with how little you’re getting.

The child support formula that the state of Texas uses is dependent on how many children the obligor supports; it’s a percentage of his or her net income (with a net income cap of $8,550 a month regardless of how much the obligor makes). If you want a look at the breakdown, and some other basic facts about how child support works, the folks at Collaborative Divorce Texas provide a good primer for that.

When an obligor’s income is clearly known, child support is a rarely litigated area. But, when it is litigated, the disputes concern one of three areas.

The first, and most common, is disputing what an obligor’s actual income is. If the obligor is a small-business owner, is self-employed, or has fluctuating income, it’s obviously harder to determine an income. Child support is determined from the net monthly income, not what’s on a paycheck stub, and in cases where income varies, the average net monthly income is typically calculated from a yearly gross income as the starting point.

But business deductions and cash deals can complicate the question of the actual income. Litigation can include a discovery process in which the obligor’s business books are scrutinized.

The second area concerns obligors who might be intentionally unemployed or underemployed at the time child support is calculated, in order to avoid a payment along the lines of what he or she might typically earn. For example, if a doctor suddenly leaves a practice and takes a job at a convenience store, he’s earning much less than he potentially could be. That, of course, is an extreme example—in real life, it’s much harder to prove that an obligor is purposefully working to less than potential.

The third area comes up when one party wants to argue that the standard child support guidelines should not apply to his or her child’s particular case. These are typically cases where an obligor has a lot of money and the child has abnormally high expenses, such as when a child has a disability or medical condition. If the custodial parent is unable to work, or can’t work full-time, because of his or her role as the child’s primary caretaker, that strengthens the argument a lawyer could make in this case. (It’s also worth noting that a dependent with a disability can receive child support beyond 18 or high school graduation.)

There could also be a case made if a wealthy obligor remarries, has children with the new spouse, and those children go to private school and receive other privileges compared to children from the first marriage. Could the ex-spouse from that first marriage argue that her children should get access to the same type of education as the children from the second marriage? I think it would be a hill to climb, but there’s enough merit to this argument to at least consider moving forward with a lawsuit.

Which brings me to an important point. You want to make sure that if you’re going to court over child support, that there’s a legitimate reason to dispute it. While those three categories allow for child support litigation, it’s best to talk to an experienced family lawyer about your case to determine if litigation is viable and how best to proceed.