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 file an enforcement suit against someone, you must notify them of the pending action. 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. Should the respondent not appear in court as scheduled, you can request the issuance of a capias to have them arrested.
Defending Oneself Against Child Support Enforcement
A parent entitled to child support typically initiates an enforcement action against the parent required to pay. In a recent blog post, I detailed the essential criteria for a petition enforcing missed child support payments. If you’re interested, you can review that post.
From the angle of a parent who owes child support, how do you respond to the other parent’s petition claiming you haven’t paid the ordered amount?
Child Support Possession Credit
If you, as a parent, are ordered to pay child support but primarily care for your child with the other parent’s consent, you can assert this defense in your Answer. The other parent’s voluntary decision to let the child live with you justifies your exemption from paying child support.
The logic is clear: if you already cover the daily expenses of raising the child, you shouldn’t also have to pay additional child support. You may receive credits for any child support you paid to the other parent during periods when you had the child more than the ordered arrangement.
Texas Family Code 157.008 (a) supports this defense, stating: “(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.”
To claim any overpaid support, you will likely need to file a counter-petition detailing the excess amounts you believe you are owed.
Inability to Pay the Child Support
This may be easier said than done. Imagine being a judge. If you’re truly struggling financially, it’s reasonable to assess whether your child support obligations should decrease. However, losing your job isn’t a valid excuse.
A judge might contend that you should have prepared for job loss by saving for child support. I’ve seen many men and women try to convince a judge that being jobless means they can’t afford child support. Without a compelling reason, the enforcement action will probably succeed against you.
- Can you sell property to fulfill your child support duties?
- Is taking several part-time jobs feasible?
- Can you borrow money without severe financial harm?
If not, arguing that you can’t afford payments likely won’t work. However, if you combine inability to pay with extreme circumstances preventing any alternative payment method, you might have a chance to dismiss the enforcement in court.
We do not recommend informal payments, such as direct payments to the parent receiving child support, because they don’t appear in the Office of the Attorney General’s official record of payments.
However, if you present proof of these informal payments to the judge, you might render the enforcement action unsuccessful. I have witnessed individuals providing evidence like money transfer receipts and copies of checks to show direct payments.
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?
- What is the average amount of child support per child?
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.