Thank you for coming back to the blog for the Law Office of Bryan Fagan, PLLC, to read more about Enforcement actions in a family law court. Today’s post will discuss how to notify an opposing party of the lawsuit and potential defenses you can submit to the court if 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 them 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 enforcement.
Other attorneys have emailed me notice as if this were an Answer to a Divorce Petition. This will not clear the procedural hurdle 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 them to appear at a hearing.
There are additional protections for persons 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 before any court hearing.
If you cannot provide that ten days notice, they will still need to appear at the scheduled hearing date. The judge or the court clerk 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 to have them arrested.
Defending oneself against child support enforcement
One of the most common enforcement actions taken in Texas family courts is child support matters mattersmatters. 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 noted 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 apparent- you should not have to both pay for the day-to-day expenses of raising a child and provide them with child support on top of it. You can be awarded credits for paying child support to the other parent during the times 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 genuinely 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, money is too tight and unavailable to pay child support. Unless you have an extenuating circumstance to provide to the judge, the enforcement will likely be victorious against you.
- Do you have a 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 prices through the Office of the Attorney General.
However, if you can 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 said it’s ok for you to pay them 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, PLLC: 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 contactcontact the Law Office of Bryan Fagan, PLLC, today. Our licensed family law attorneys attorneysattorneys can 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.
- When does your duty to pay child support end in Texas?
- Should a Divorced Parent Sign a Waiver (Release) and Indemnity Agreement to Allow a Child to Participate in Recreational Activities?