Most divorces that come thru our office involve children and directly related to a divorce with children is the issue of child support. The typical conservatorship in a divorce case in Texas courts will involve one of the parents being appointed as the custodial parent and the other being appointed as the noncustodial parent. The noncustodial parent will usually be ordered to pay child support to the custodial parent in most divorce orders.
How long do I have to pay child support?
The Texas Family Code Sec. 154.001 provides the answer to that question.
(a) The court may order either or both parents to support a child in the manner specified by the
order:
(1) until the child is 18 years of age or until graduation from high school, whichever occurs
later;
(2) until the child is emancipated through marriage, through removal of the disabilities of
minority by court order, or by other operation of law;
(3) until the death of the child; or
(4) if the child is disabled as defined in this chapter, for an indefinite period.
What if the child will be adopted?
(a–1) The court may order each person who is financially able and whose parental rights have been terminated with respect to a child in substitute care for whom the department has been appointed managing conservator, a child for a reason described by Section 161.001(b)(1)(T)(iv) or (b)(1)(U), or a child who was conceived as a direct result of conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, to support the child in the manner specified by the order:
(1) until the earliest of:
(A) the child’s adoption;
(B) the child’s 18th birthday or graduation from high school, whichever occurs later;
(C) removal of the child’s disabilities of minority by court order, marriage, or other
operation of law; or
(D) the child’s death; or
(2) if the child is disabled as defined in this chapter, for an indefinite period.
(b) The court may order either or both parents to make periodic payments for the support of a child in a proceeding in which the Department of Protective and Regulatory Services is named temporary managing conservator. In a proceeding in which the Department of Protective and Regulatory Services is named permanent managing conservator of a child whose parents’ rights have not been terminated, the court shall order each parent that is financially able to make periodic payments for the support of the child.
(c) In a Title IV-D case, if neither parent has physical possession or conservatorship of the child, the court may render an order providing that a nonparent or agency having physical possession may receive, hold, or disburse child support payments for the benefit of the child.
What if the child in a divorce is disabled?
A child support obligation may be indefinite if the court finds the child the subject of the suit is disabled.
What if the child has graduated from high school?
In a divorce case or a child support case, the court may render an original support order, or modify an existing order, providing child support past the 18th birthday of the child to be paid only if the child is:
(1) enrolled:
(A) under Chapter 25, Education Code, in an accredited secondary school in a program
leading toward a high school diploma;
(B) under Section 130.008, Education Code, in courses for joint high school and junior
college credit; or
(C) on a full-time basis in a private secondary school in a program leading toward a
high school diploma; and
(2) complying with:
(A) the minimum attendance requirements of Subchapter C, Chapter 25, Education
Code; or
(B) the minimum attendance requirements imposed by the school in which the child is
enrolled, if the child is enrolled in a private secondary school.
(b) The request for a support order through high school graduation may be filed before or after the child’s 18th birthday.
(c) The order for periodic support may provide that payments continue through the end of the month in which the child graduates.
What does the case law say about paying child support past the age of 18?
The intent of the law is to require parents to provide support for their children, even beyond the age of eighteen years, as long as the child is pursuing a high school diploma or the equivalent.
In re J.R.G., the trial court case showed that the court did not abuse its discretion in terminating father’s child support obligation where mother failed to provide accurate proof that the child was enrolled full-time in a program leading toward a high school diploma and that the child was meeting the minimum attendance requirements.
In re J.A.B., the court ruled that “Full enrollment” does not mean that the child must be participating in high school or its equivalent. Further, the mere fact that a child may not pass or has accumulated too many absences and will not receive enough credits to graduate does not determine “full enrollment.” Instead, “full enrollment” requires that the child’s name appear on the rolls of the school district, that the child be registered for the normal number of classes, and that the child has not been withdrawn or expelled from school.
In the case, Crocker v. Attorney General of Texas, the overriding legislative concern behind a trial court’s ability to order an obligor to pay child support after a child turns eighteen is to support the child through a program leading toward a high school degree. Further, a court analyzes “full enrollment” for purposes of this section on the basis of the total number of hours the child would be required to take to seek graduation and not the actual hours the child is currently taking.
What if my spouse and I decided not to include child support?
If child support is not going to be ordered in a divorce decree or other child support order, we suggest speaking with legal counsel regarding that issue. Some cases do warrant that the parties not pay child support. However, the parties must be able to articulate to the court that either the parties are coparenting the child and/or that the parties have comparable incomes and are going to divide the time between the parents. In any event, it is up to the divorce judge or the court to decide what is in the child’s best interest when the issue of child support arises in a family law case.