Child Support Enforcement Defense - Act Sooner Rather than Later

We have written several articles on why it is a good idea to pay your child support. We also have written articles on why ignoring a child support agreement or making an informal agreement with the other parent is a bad idea.

One the things I tell my clients is an order is the order until a judge signs a new order.

Under Section 156.401(a-2)(b) of the Texas Family Code, “A support order may be modified with regard to the amount of support ordered only as to obligations accruing after the earlier of:

  1. the date of service of citation; or
  2. an appearance in the suit to modify

What this means is that in most circumstances, if you do not file to change the order, you very well may be stuck owing more child support then you should. The law does not provide you a time machine, except in some rare circumstances.

My advice is still the same—you should not ignore your child support obligation and should file to change things sooner than later. It is normally easier and cheaper to fix things sooner rather than later.

The Case Scenario

In one of our cases, a court signed a child support review order that established the parent-child relationship for our client, FATHER, to pay child support to MOTHER.

Afterwards, they reconciled and moved in with each other and lived with the children in the same household.

MOTHER and FATHER thereafter called the Office of the Attorney General in Texas several times to terminate FATHER’s order to pay child support. They were told the orders would be stopped or held.

Three years later, both MOTHER and FATHER went to jail.

The children’s grandparents then took possession of the children and eventually were given legal custody.

Later, MOTHER got out and was given back primary custody of the children. Sometime later, FATHER got out.

Eventually, a child support enforcement case was brought against FATHER that said he owed child support to MOTHER all the way back to the time he was first established as being the father of the children.

MOTHER no longer liked FATHER and was in no way willing to help. She was thrilled that she might be entitled to several hundreds of thousands of dollars.

Defending Against a Child Support Enforcement Case

The threat to FATHER was very real; it said he owed MOTHER hundreds of thousands of dollars and that the Attorney General wanted FATHER back in jail for not paying child support.

Texas Family Code 157.008 (a)-(b)

This area of the code sets out the possible defenses under the Texas Family Code for an enforcement on child support; it says:

(a) An obligor may plead as an affirmative defense in whole or in part to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of a child.

(b) The voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession of and access to the child and actual support must have been supplied by the obligor.

(c) An obligor may plead as an affirmative defense to an allegation of contempt or of the violation of a condition of community service requiring payment of child support that the obligor:

  1. lacked the ability to provide support in the amount ordered;
  2. lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
  3. attempted unsuccessfully to borrow the funds needed; and
  4. knew of no source from which the money could have been borrowed or legally obtained.

(d) An obligor who has provided actual support to the child during a time subject to an affirmative defense under this section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.

(e) An action against the obligee for support supplied to a child is limited to the amount of periodic payments previously ordered by the court.

In reviewing this section of the Texas Family Code, it looked like (d) might be FATHER’s best hope.

Another thing in our client’s favor was a recent Texas Supreme Court Case Ochsner v. Ochsner.

Ochsner v. Ochsner, 2016 Tex. 569 (Tex. Sup. Ct. June 24, 2016) (Cause No. 14-0638.)

In Ochsner, the father of the child was ordered to pay $800/month in child support through the state disbursement unit. From October 2002 to January 2011, the father (H) did not make any direct payment through the state disbursement unit and was in arrears for over $55,000.00.

However, he had made payment for the child to go to a private school for a period of four years, which cost approximately $78,000.00. The mother (W) of the children filed an enforcement action for child support arrearages.

The trial court denied the motion for enforcement and held that the payments made for the private school exceeded the amount owed in child support. W appealed and the Court of Appeals reversed and remanded.

The trial court conducted a second hearing in 2013 and denied W’s motion, finding that because the private school payments exceeded child support arrearages, W was not owed any back child support.

W appealed again and the Court of Appeals held that the trial court had no authority to reduce or ignore back child support by considering financial assistance given to the child outside of direct payment to the State Disbursement Unit.

H filed a petition to review and the Supreme Court held that H was entitled to get an offset of the back child support obligation because H helped child go through private school, which cost more than the child support arrears.

Fighting Father’s Case in Court

Based on the Texas Family Code and Ochsner v. Ochsner, we prepared a response to the Attorney General as well as a “Motion to Confirm Child Support Arrears of Respondent As $0.”

We then argued the facts and the case law in court. Ultimately, the judge agreed and wiped out much of our client’s support obligation and redirected a portion of it the grandparents who had provided the care of the child for the time MOTHER and FATHER were in jail.

FATHER was very happy and grateful with the result.

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Other Articles you may be interested in:

  1. Can my Texas Driver's License Be Suspended for Not paying Child Support?
  2. Child Support Modification in Texas (Part 1)
  3. What do I do if I have overpaid child support in Texas?
  4. Child Custody Basics in Texas
  5. Child Support and College Tuition in Texas
  6. Texas Child Support Appeals
  7. In Texas are Child Support and Visitation Connected?
  8. Texas Child Support – Trust and Annuities
  9. Special Needs Children in Texas Child Support Cases
  10. How to get above guideline child support.

Law Office of Bryan Fagan | Tomball, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Tomball, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Tomball TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Tomball, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Spring Divorce Attorney
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Houston, TX 77068
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