Texas Divorce Attorney Blog
Many have heard the story of Devon Still and his daughter Leah—a four year old in a battle with cancer. Recently, it was reported that Devon Still ex, and mother of Leah, is accusing Mr. Still of failing to pay child support for many months. The question that many are asking is whether Mr. Still’s financial support for his daughter outside of “child support” would offset his child support obligation. If this occurred in Texas, what would a Court say?
In Texas, the answer is most likely no, and Mr. Still would be facing jail time for contempt of Court if he failed to pay court-ordered child support. Hypothetically, Assume that Mr. Still is under an order to pay child support in Texas. Would he have any defense for his failure to pay (other financial support, medical support, etc.)? The Texas Family Code has specific defenses for the failure to pay child support. These include voluntary relinquishment by the obligee (party owed support) to the obligor (party responsible for paying support). Basically, if the obligee gives the obligor more time than ordered by the Court, the obligor can have a defense to failure to pay child support if he also provided actual support of the child. In Mr. Still’s case, if he had possession of his daughter full-time due to the fact that her mother voluntarily relinquished their daughter to Mr. Still, then he would have an affirmative defense to the Court’s enforcement of his child support obligation.
It has also been reported that it is possible that Mr. Still is not under an order to pay child support and has been paying money to Leah’s mother despite an order not being in place. If Leah’s mother now seeks an order for Mr. Still to pay child support, what would a Court in Texas do? A court would establish child support. The guidelines in Texas for one child provide that the obligor pay 20% of his net monthly income; however, this amount is capped at a net monthly income of $8,500.00 per month. Therefore, the “max” guideline child support in Texas is $1,710.00 per month. The Court can looks at factors to order more than the guideline amount. These factors include: financial resources available, net resources of parents, payment of medical expenses, etc. The obvious question would be whether or not Mr. Still gets credit for his previous payments that he paid even though there was no Court order in place. In Texas, the Court has the authority to order support retroactively. For example, in the Still case, a court in Texas could order retroactive support for Leah’s life since birth—4 years. The Texas Family Code does provide, however, factors for the Court to consider when deciding whether or not to order retroactive child support. These factors include “actual support or other necessaries”. If Mr. Still had been paying financial support to his daughter prior to her mother seeking a child support order, a court in Texas would definitely order child support; however, the Court may not award child support for the last 4 years as it is clear that Mr. Still has been providing support for his daughter during her struggle with cancer.