If you find yourself in a position where you have been unable to pay the
child support you have been ordered to pay there are defenses that you can offer in
an enforcement hearing.
The fact of the matter is that one of these defenses will hopefully be
applicable to your situation because if not,
child support enforcementcases can be very cut and dry. Did you make the full payment, on time to your
child’s other parent in the manner stated in your prior order? If
not you will likely be held in
contempt of court. Let’s get into those defenses without further delay.
If you as the
possessory conservator of your child and the custodial parent allowed your child to reside with
you for any period of time then you are not on the hook for paying support
for those periods.
This stands to reason. The reason why noncustodial parents are on the hook
for paying child support in the first place is that they have a duty to
support their children at all times. The child support payments are supposed
to act as a substitute for your care and support when you are not able
to be in possession of your child.
Voluntarily relinquishment of your child to you
Voluntarily relinquishment to you by your child’s other parent is a defense to your having
to pay child support.
If you have actual care, control and possession of your child over and
above what you are ordered to have in your prior order then you should
not have to pay “double” support.
If you did pay child support for these periods of time that your child
was in your possession when he or she was not necessarily ordered to be
you can earn credits for payments made. It is important that you be able
to show that your child was actually living with you on a day in day out
basis for whatever period of time you are offering this defense.
Being unable to pay the child support obligation
An inability to pay the child support you had been ordered to is another
defense that you can offer at an enforcement hearing. To do so you must
prove that you had no options in terms of your ability to provide the
support that you were ordered to. This means that you could not have had
the property that could have been sold in order to get the money you needed
to pay the support as ordered.
Do you have a wealthy parent, or friend or another relative that you could
have borrowed the money from to pay your child support?
If you did and did not inquire about a loan then the court may find your
defense lacking and order you to pay any back support that you may owe.
I realize that asking a relative or friend for a loan is uncomfortable
but courts have been swayed by evidence of relatives with deep pockets
who were not contacted for a loan in order to meet a child support obligation.
Direct Payments to the other parent that are not reflected in the Attorney
General’s ledger of payments
The Office of the Attorney General has a ledger that details the date payments
for child support are due, along with the amount paid (if any) and the
arrearage in place for any partial payments received. It is fairly standard
for payments to go through the State Disbursement Unit and then on to
the bank account of your child’s other parent. In this way, there
is typically no issue as far as proving payments were either made or were not made.
In some scenarios, you and your child’s other parent may have spoken
or worked out an arrangement where you pay him or her directly rather
than going through the Disbursement Unit. For instance, you may have switched
jobs and not had a new
Wage Withholding Order submitted to the court with your new employer’s information. Or,
perhaps you and the other parent are on friendlier terms where he or she
feels comfortable accepting money for child support directly from you.
From my experience, while this sounds like a nice idea, in practice it
almost always blows up in the obligor parent’s face the first time
a payment is missing, late or made only partially. You have no protection
other than offering this defense at an enforcement hearing if the other
parent decides to file an enforcement suit against you for failure to
pay child support. You must prove that you were not given credit for all
How can you prove to a judge that you made the payments directly to the
other parent? Check copies, money order receipts or cashier’s checks
are examples of documents that could save you if you find yourself needing
to offer defenses to a child support enforcement case.
The bottom line is that some judges simply will not give you any credit
for direct payments made to the other parent for child support purposes.
If your prior order does not allow for direct payment of child support
then my advice would be to never indulge in that practice.
No matter how much easier it may seem or no matter how friendly the other
parent is it is a bad idea to make direct child support payments. Pay
through the State Disbursement Unit. Have the money taken out of your
check and take it out of your hands.
Past Behavior as an indicator of compliance
In criminal law, there is the idea that a person’s “prior bad
acts” cannot be used as an indicator that he or she committed a
present crime. Your past should not influence the legal system in charging
you with a crime, in other words.
However, in a child support enforcement case a judge can consider your
past behavior as far as compliance with paying support when determining
a punishment for you. Once all of the evidence has been put forth by both
sides the judge will be able to consider evidence related to punishment.
If you and your attorney can, be sure to provide evidence to the judge
showing that previously you had never missed a child support payment,
etc. This can be utilized when considering what punishment is appropriate
considering your individual circumstances.
Defenses to the failure to pay spousal maintenance
Like child support, spousal maintenance payments need to be made according
to the orders set forth in your prior court order.
An inability to pay spousal support is also a defense just as we saw in
the above sections on child support payment defenses. Essentially you
must be able to show a judge that you had no property that could be sold
to pay the spousal support and that you knew of no source that you could
have borrowed the money from either.
The alternative to that defense would be to offer evidence that your ex-spouse
has been involved in a romantic relationship and has been cohabitating
with that person. This is another valid defense to the failure to pay
spousal maintenance. If successful, you may be able to be absolved of any future responsibility
to pay spousal maintenance as well.
Punishments for the failure to pay child support- tomorrow’s blog topic
The attorneys with the
Law Office of Bryan Fagan appreciate your time and attention as we go through some of the different
aspects of child support enforcement cases. This is an important subject
and one that we have found people just like you have questions about with
great frequency. Check back in tomorrow as we go over the punishment phase
of a child support enforcement case.
If you have questions on this or any other topic in the field of family
law please do not hesitate to
contact the Law Office of Bryan Fagan. One of our licensed
family law attorneys will be available to meet with you six days a week to answer questions
and help you problem solve through your individual situation. Consultations
with our office are free of charge.
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Other Articles you may be interested in:
- Family Law Enforcement Hearings: Agreements to Settle and Trial
- Reviewing your case history is crucial to success in an enforcement case
- Texas Family Law Court: Enforcement Actions
- How much will your child support enforcement case cost?
- The Steps of an Enforcement Case in Texas family law court
- Preparing for an Enforcement case in Texas
- Defending against an Enforcement Action in Texas
- Enforcement Suits in Texas Family Law, Part Five
- Enforcement Suits in Texas Family Law, Part Four
- Enforcement Suits in Texas Family Law, Part Three
- Enforcement Suits in Texas Family Law, Part Two
- Enforcement Suits in Texas Family Law: An Overview
- Child Support Enforcement Defense - Act Sooner Rather than Later
- Can my Texas Driver's License Be Suspended for Not paying Child Support?
Law Office of Bryan Fagan | Houston, Texas Enforcement Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
order enforcement, it's important to speak with one of our
Houston, TX EnforcementLawyers right away to protect your rights.
enforcement lawyers in Houston 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
enforcement cases in Houston, Texas, Cypress, Klein,
Houston, the FM 1960 area, or surrounding areas, including
Fort Bend County and