Thank you for coming back to the blog for the Law Office of Bryan Fagan to read more about Enforcement actions in family law court. Today’s post will discuss how to notify an opposing party of the lawsuit as well as potential defenses that you can submit to the court in the event that you are on the receiving end of an enforcement suit.
Providing notice of a pending Enforcement suit
If you are filing an enforcement suit against someone then you are required to provide him or her notice of the action that is pending. I have seen instances where if an opposing party knows that our office represents a person then the opposing party will serve me personally with an enforcement.
Other attorneys have simply emailed me notice as if this were an Answer to a Divorce Petition. This simply will not clear the procedural hurdle that is required in an Enforcement case. You must have the opposing party personally served with your petition as well as an instruction from the court ordering him or her to appear at a hearing.
There are additional protections for persons that are on the receiving end of an enforcement action. These folks, known legally as the Respondent, have a legal right in Texas to be provided at least ten days worth of notice prior to any court hearing.
If you were not able to provide that ten days notice, he or she will still need to appear at the scheduled hearing date. The judge or the clerk of the court can have the Respondent swear to appear back in court at a future date. If the respondent fails to appear in court as scheduled then you can request that a capias be issued in order to have him or her arrested.
Defending oneself against child support enforcements
One of the most common enforcement actions taken in Texas family courts are those related to child supportmatters. Most typically a parent who has the right to receive child support will file an enforcement action against the parent who is obligated to make child support payments.
In a previous blog post from a few days ago I made note of the specific requirements that a petition for enforcement of missed child support payments must meet if you are interested in going back and reading through them.
While we have discussed this topic from the perspective of the parent who is owed child support, what if you are the parent who is obligated to make child support payments? How can you answer the petition of the other parent who is arguing that you haven’t paid what you have been ordered to?
Child Support Possession Credit
If you are the parent who is ordered to pay child support and your child is living with you primarily with the consent of the other parent then you can cite this defense in your Answer.The other parent voluntarily allowing the child to live with you provides you a reason not to pay child support.
The reason is obvious- you should not have to both pay for the day to day expenses of raising a child as well as provide him or her with child support on top of it. You can be awarded credits for paying child support to the other parent during the times at which you have possession of your child over and above what is ordered.
This defense is found in Texas Family Code 157.008 (a) 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."
A counter petition would most likely need to be filed by you to assert any amounts that you believe are due and owing to you for excessive support previously paid.
Inability to Pay the Child Support
Showing an inability to pay the child support that you have been ordered to pay is a valid defense as well. This can be easier said than done, however. Put yourself in the position of a judge for a moment. If you are truly struggling from a financial perspective then it is fair to consider whether or not your obligation to pay child support should be curtailed. Losing your job is not a valid reason.
A judge would likely argue that you could have anticipated the possibility of losing your job and should have therefore set some money aside for your child support obligations. I have seen many men and women attempt to argue to a judge that because they are between jobs that money is too tight and unavailable to pay child support. Unless you have an extenuating circumstance to provide to the judge it is likely that the enforcement will be successful against you.
- Do you have property that can be liquidated to pay your child support obligation?
- Is it possible for you to take on a few part time jobs?
- Can you borrow the money in a manner that will not be to your severe economic disadvantage?
If so, you will likely lose out if you attempt to make the argument that you cannot afford to make the payments. With that said, if being unable to pay is combined with extreme circumstances of any alternative method of payment then you may stand a chance to have the enforcement thrown out of court.
Informal payments, as in payments made directly from you to the parent who receives child support, are not recommended because they do not show up on the official record of payments through the Office of the Attorney General.
However, if you are able to provide proof of these informal payments to the judge the enforcement action may be unsuccessful. I have seen folks present evidence like receipts made for money transfers and also check copies showing the payments that were directly made.
The best way to protect yourself from an enforcement action like this is to abide by your court order if it states you must make payments through the Office of the Attorney General. Even if you and the other parent are on good terms now and he or she said it’s ok for you to pay him or her directly, keep making payments through the Attorney General. It can save you a lot of time, money and stress.
The Law Office of Bryan Fagan: Advocates for Southeast Texas parents and families
If you are facing an enforcement suit or are interested in filing one, please contact the Law Office of Bryan Fagan today. Our licensed family lawattorneys are able to assist you with these matters and many more. A free of charge consultation is available six days a week to discuss any questions that you may have.
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Other Articles you may be interested in:
- 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?
- Child Support Modification in Texas (Part 1)
- What do I do if I have overpaid child support in Texas?
- Child Custody Basics in Texas
- Child Support and College Tuition in Texas
- Texas Child Support Appeals
- In Texas are Child Support and Visitation Connected?
- Texas Child Support – Trust and Annuities
- 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, Houston, 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.