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Child Support in 50/50 Possession cases

Do I have to pay child support if we have a 50/50 possession?
This is a common question that I get from many of my clients. The answer is yes and no. Even with a 50/50 possession schedule, one of the parties will have to be the parent with the primary and exclusive right to establish the domicile of the child with the right to enroll the child in school. Or, in many cases, the earning disparity is so great that the higher earner will usually be the party paying child support to the other party. The parties may also mutually agree to not pay child support to each other and provide the total support of the child while the child is in possession of the party.

Is there a child support guideline amount?
The child support guidelines in the Texas Family Code are intended to guide the court in determining an equitable amount of child support.

How do courts apply the child support guidelines?
The amount of a periodic child support payment established by the child support guidelines in effect in this state at the time of the hearing is presumed to be reasonable, and an order of support conforming to the guidelines is presumed to be in the best interest of the child. A court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances.

Are there other factors that the court will consider?
The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines. In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:
(1) the age and needs of the child;
(2) the ability of the parents to contribute to the support of the child;
(3) any financial resources available for the support of the child;
(4) the amount of time of possession of and access to a child;
(5) 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;
(6) child care expenses incurred by either party in order to maintain gainful employment;
(7) whether either party has the managing conservatorship or actual physical custody of another child;
(8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;
(9) the expenses for a son or daughter for education beyond secondary school;
(10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
(11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
(12) provision for health care insurance and payment of uninsured medical expenses;
(13) special or extraordinary educational, health care, or other expenses of the parties or of the child;
(14) the cost of travel in order to exercise possession of and access to a child;
(15) positive or negative cash flow from any real and personal property and assets, including a business and investments;
(16) debts or debt service assumed by either party; and
(17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

Can the parties enter into an agreement for the amount of child support?
To promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreement containing provisions for support of the child and for modification of the agreement, including variations from the child support guidelines provided by the Texas Family Code.
If the court finds that the agreement is in the child’s best interest, the court shall render an order in accordance with the agreement. Terms of the agreement pertaining to child support in the order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract. If the court finds the agreement is not in the child’s best interest, the court may request the parties to submit a revised agreement or the court may render an order for the support of the child.

In the majority of divorce or child support cases that I present to the Dallas County courts, the court will more than likely apply the child support guidelines to cases involving children. If you are not the custodial party, be prepared to be obligated by the court to provide guideline child support to the custodial party.

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