Child Support Withholding, i.e., "Child Support Garnishment"

In almost all circumstances, one parent will pay child support. When a court orders child support payments, the court must order that income be withheld from the obligor's disposable earnings as child support. This is often call "wage garnishment." It is not, however, it is child support withholding.

A Wage Withholding Order, for good cause shown or by agreement of the parties (court must approve the agreement) may be suspended. That is that the order withholding income will not be issued or delivered to an employer until the obligor has been in arrears for an amount due for more than 30 days; or  the amount of the arrearages is an amount equal to or greater than the amount due for a one-month period; or any other violation of the child support order has occurred.

If the court suspends income withholding, an order for support must contain a provision to ensure that withholding may be effected if a violation of the support order occurs. A child support order must be construed to contain a withholding provision even if the provision has been omitted. The order must provide that income withheld for child support be paid to a local registry or the Title IV-D agency (Attorney General's Office). The mere fact that the obligor is a temporary employee is not considered good cause to refuse to order income withholding.

A child support withholding order must direct the obligor's employer to withhold from the obligor's disposable earnings the amount specified, up to a maximum of 50 percent of the obligor's disposable earnings. In addition to the amount withheld as child support, the employer may deduct an administrative fee of not more than $5 per month from the obligor's disposable earnings.

The employer must remit the withheld amount to the person or office named in the order on each pay date. The employer must include the following information with each payment transmitted

• The date on which the withholding occurred.

• The number assigned by the Title IV-D agency, if available, the county identification number, if available, or the cause number of the suit under which withholding is required.

• The payor's name unless the payment is transmitted by electronic funds transfer. 

Employer's must comply with a wage withholding order and may not discipline an employee because one was issued. An employer may not use an order for withholding for child support as grounds for terminating employment or any other disciplinary action against an employee. This is true whether the employee is a permanent or temporary employee. In addition, an employer may not refuse to hire an employee because of an order to withhold income for child support. An employer who intentionally discharges an employee based in whole or in part on such an order continues to be liable to the employee for current wages and other benefits and is liable for reasonable attorney's fees and court costs incurred in enforcing the employee's rights. Only the employee may bring an action for these remedies. In addition, an employer who knowingly violates these rules may be subject to a fine not to exceed $200 for each occurrence in which the employer fails to withhold. A fine recovered under this provision is to be paid to the obligee and credited against any amounts owed by the obligor. 

The top row across represents the number of children which are before the Court. The left-most row addresses children who are not before the Court but are a child(ren) of a previous relationship that the obligor has a duty to support. In order to use the table effectively, assume one child of the marriage and no children from a previous relationship as to either party. In this example, guideline support is 20% of net resources as to the obligor (person paying support). Another example, assume two children from a previous relationship and two children from the current marriage. Guidelines indicate that the obligor should pay 20.63 of net resources for child support. The reduction is in place because the obligor has a duty to support children from each relationship.

Although the Texas Family Code provides guidelines that are presumed to be in the child's best interest, it is possible to rebut the presumption. Several factors that the courts may consider in deciding to vary from the guidelines include, the needs of the children, the ability of the party to pay child support, and the debts the paying parent is assuming.  Further, if a parent is having to travel long distances in order to exercise visitation, the cost of travel (gasoline, airfare, hotel expense) are factors that may support a variance from the child support guidelines. In addition, if a paying parent is supporting a child through college, this factor may also call for a reduction in child support.

See also, Child Support Withholding or, commonly called, Child Support Garnishment.

Child Support Net Resources

Child support guidelines base their percentages on "net resources." Net resources include more than just salary but also includes money earned in the form of commissions, overtime pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, and gifts.

Deducted from gross "resources" are any amounts paid for social security taxes, federal income taxes (based on the tax rate for a single person claiming one personal exemption and the standard deduction), union dues, and any expenses that he obligor pays for the children's health insurance. These amounts are deducted from an obligor's resources to determine net resources for applying the child support guidelines.

Needs of the Child

The Texas Family Code does not define "needs of the child." The term, however, includes more than just "bare necessities." To justify child support in excess of the percentage guidelines, evidence of a child's special needs are required.

The Texas Supreme Court has had a difficult time with defining special needs. In order to justify child support greater than the child support guidelines, proof that the children's needs have increased or are greater than the "average child" include special education, advanced education, extracurricular activities (debate club, scouts, sports), and clothing. In Giangrosso, 840 S.W.2d 769, the father testified that the child had become more expensive to care for and support because the child was growing and involved in more sporting activities. The court held, "this testimony alone could serve as evidence that the child's situation has so substantially changed as to warrant an increase in child support obligations." In Scott 926 S.W.2d 415, the mother testified to actual costs associated with meeting the child's needs and estimated costs associated with items the mother believed would benefit the child but she could not afford. She went on to testify to other items relevant to the child special needs. The appellate court stated, "the law does not require a movant (the mother in this case) seeking child support modification to go this far . . . the child's mother is in the best position, as managing conservator, to explain the needs of the child.

Upon a showing of a child's special needs, the court may, in its discretion, award child support greater than the guidelines.

Child Support - Special Needs Child - Leading Texas Case on Special Needs: Scott v. Younts

Child Support - Wage Withholding/Garnishment

Child Support - Medical Support Order