If you have recently remarried after a divorce and are paying child support, you may have questions about whether the State of Texas can pull funds out of a jointly held bank account to pay your regular payments of child support. Additionally, you may owe back child support on top of the normal child support payments that you stand to make. Can your joint bank account with a new spouse be tapped to satisfy those obligations? Simply put, yes it can. Let’s discuss that circumstance as well as other considerations that you may need to keep in mind as you manage life with your new spouse as well as the obligation to support your children.
You would receive notification from your financial institution of any money having been taken out of your account by the Office of the Attorney General. Specific information about each transaction will be disclosed. This is a safeguard set up by your bank to notify you of any changes in the balance of your account. You can refer to this document when contacting your bank with any questions. Make sure to keep any record of these letters or emails that you receive in case you need to refer to them at a future date. Sometimes banks continue to take money out of your account even after your obligation to pay child support ends. You can keep these transactions handy in case money needs to be returned to your account after the fact.
If you think that a garnishment of your wages or bank account has been done in error, then you do not have time to waste. You should contact a family law attorney immediately to determine if the garnishment has been done in error. Sometimes courts, the attorney general, and banks can get their lines crossed up, and the mix-up results in money being taken out of your bank account that should not have been. Nobody has ever accused the government of being the most up-to-date or accurate on much of anything. As a result, you need to be the person who double-checks all these items to ensure that you are not losing money unnecessarily. It also makes sense to keep a copy of your child support orders handy so that you can know what is happening with your case based on the actual language of your order.
The OAG also has a website for parents like you who either pay or receive child support. The website will contain a history of payments made through their office to satisfy a child support obligation. You can log into your account and should do this regularly. It represents the most accurate and up-to-date information on child support that you can find. This means that if you are keeping a record at home of payments you can continue to do so but you should keep in mind that in the event of a discrepancy the ledger maintained by the OAG will be what the court will refer to. This may happen if an enforcement case is filed alleging that you violated your child support orders in some way- likely by failing to pay child support either on time or in full.
There are certain funds or money in your jointly held bank account that cannot be tapped to pay child support. Here is what you need to know about these funds. You can choose to use them to pay child support- either standard or back child support- However, if there is an order from a court that allows the OAG to garnish your wages then these funds cannot be accessed to pay child support, Examples of money that cannot be tapped to pay back child support include supplemental security income from Social Security (SSI), unemployment benefits from the State of Texas or student loan money. If these funds are being tapped to pay for a child support obligation you would need to file a motion with the court to bring this to their attention so the money will not continue to be garnished.
What’s the deal with jointly held bank accounts?
When the Office of the Attorney General attempts to garnish your wages within a jointly held bank account it will need to contact your bank before being able to do so. The OAG will request the Social Security numbers and names of any persons who are listed as account holders. The trouble that you can run into in a situation like this is that once the OAG finds out that you and another person own the account, they cannot distinguish between money in the account that comes from your work, from unemployment, from SSI, or your spouse's income. Once the money is deposited it becomes a part of the joint account and it all starts to look the same after a certain period. The OAG would assume that the money in your account is fair game to be tapped or garnished to satisfy a court order on child support.
Keep in mind that if money is taken out of the account, then the OAG will only contact you to inform you of this. The OAG will not send notice to your spouse of their bank account having been garnished or impacted in any way. Therefore, it is up to you to inform him or her of the actions of the state. Hopefully, this is something that your spouse is already aware of. It would not be a particularly good thing for your spouse to find out about these issues for the first time when trying to check your bank account one day only to find that large sum(s) of money is being withdrawn. Rather, you should take the time to talk with your spouse about this possibility and likelihood. It may mean that your spouse does not want to share a bank account with you and would prefer to have a separate account.
A separate bank account does not mean separate property
Here is an important distinction for both you and your spouse. If the two of you hold separate bank accounts from one another that does not necessarily mean that the money in each account is separate property. The source of the funds within each account is important to be aware of. For example, if the funds in each account come from your jobs, then that income would count as community property even if the money in each account belongs only to one person. You can set up you’re banking however you would like but the source of the funds is what matters. Your spouse can protect their income from the OAG by not sharing a bank account with you. However, that money in their account is still going to count as community property in the event of a divorce in the future.
Child support liens for Texas families
If you fail to pay child support on a timely basis or are otherwise unable to make full payment on time then you may have a lien placed against property that you own to help motivate you to pay that arrearage in child support. The state of Texas is required to make sure that your children receive sufficient support throughout their young lives to have minimal food, shelter, clothing, and medical care. If you are named as the person who is responsible for paying child support, then you will be the obligor. On the other hand, your co-parent will be the obligee of child support which means that he or she is paid child support as a result of the obligation that you have. You can look to your court orders to determine the specific language that is utilized for your case but whether you receive or pay child support should be obvious to you as a result of the initial court case.
You likely already know that if you must pay child support that certain requirements must be followed as far as the support is concerned. You have a date each month that you are obligated to pay support. If you fail to make child support payments on time and in full it can impact your children negatively. Sometimes parents in your position can become jaded by the responsibility to pay child support and instead look at child support as money that is paid directly to an ex-spouse or co-parent. Rather, the money that you pay each month in child support is owed to your children and not to your co-parent. It’s just that since you have children under the age of 18 they cannot receive the money themselves. Therefore, your co-parent receives the money on behalf of your children. Failing to pay child support can mean that your children do not have food to eat or a place to live if a rent payment is not made on time.
Your co-parent has options available to him or her when it comes to helping ensure that you pay child support as you are ordered to do so. The state of Texas can revoke your driver's license, for instance. This can be done by order of a family court in conjunction with an enforcement petition that was filed against you either by your co-parent or by the Office of the Attorney General. Keep in mind that this driver's license suspension does not end your obligation to work, pay child support, or do much of anything else. It is simply a method for the state of Texas to make your life uncomfortable and to therefore motivate you to pay child support. Failure to do so can result in a driver's license, a hunting license, or even a professional license being suspended.
Another consequence of the failure to pay child support is to receive a jail sentence from the court. This punishment is far more severe than having your driver's license suspended. Jail time means a sentence not to exceed six months being handed down by a court for you to serve. Many times, a judge will decide to issue a deferred adjudication sentence rather than jail time to allow you to avoid jail and still be able to work. However, keep in mind that the courts take seriously the responsibility to pay child support and you should look at this punishment as a real possibility for you. Hopefully, this motivates you to avoid having to go to court on an enforcement case at all costs.
What is a lien placed against your property?
A lien is a legal claim that can be placed against real property like real estate or a physical building because you owe money to the lien holder. A lien can also be placed against other types of property like a vehicle for the same reason. Some property that you own may be listed as exempt in the eyes of the law. Exempt property cannot have a lien attached to it because it is essential for your survival. Your vehicle cannot have a child support lien attached to it. A pension that you use to pay for rent and utilities cannot have a child support lien attached to it by a court, either.
On the other hand, certain types of property can have a child support lien attached to satisfy a child support debt. Certain types of real estate can have child support liens attached as well as any secondary vehicles that you own. These items can be taken by the state of Texas potentially for your failure to pay child support. Who can seek to attach a lien against your property for the payment of child support?
Your spouse can seek to attach a lien against the property that you own, usually with the assistance of an attorney. Next, the Office of the Attorney General can do so, especially if your child is receiving public assistance for health care or food services. A local child support registry or an amicus attorney that is appointed by the court to help ensure that you pay child support can all file a petition with the court to have a lien attached to nonexempt property that you own to have child support paid.
The total amount of child support that is owed plus any interest that is owed can be broken down into a lien and attached to certain property that you owe. Your co-parent could obtain a judgment against you for child support that is due. The state of Texas can also enforce liens that are handed down by family courts from other states. This means that if you just moved to Texas then you should consider what obligations may still be in play for a property that is physically located in Texas. In that case, the state is likely to enforce the court orders of another state when it comes to enforcing that child support lien.
Your co-parent does not necessarily need to go to court to make it so the lien can be enforced against your property. If your co-parent asks the court to place a lien against a certain item that you own, as long as he or she has filed the correct paperwork with the court to show why the lien is valid then it will be good to go and placed against the requested property. Notice will need to be filed with the correct county clerk where you live, where you own property that is nonexempt, or in the county where the court has jurisdiction.
A child support lien notice would need to be provided to the financial institution where a bank account exists for a lien to attach. The financial institution would then provide your co-parent with a statement including your last known address and would also need to notify your co-account holder of the lien attaching if you have a co-account holder. The account will be frozen in the amount of the lien. There are several moving pieces when it comes to liens and establishing them against certain pieces of property. No matter if you are the person who pays child support or receives child support you must be represented by an attorney to ensure that you do not make any mistakes in this process. At worst, your children can be negatively impacted when they otherwise may not have to be, On the other hand, you may not be able to utilize the property that you need for your daily life if a lien is attached.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.