One of the most frustrating situations after a divorce case is to find out that your ex-spouse has not been paying child support to you. While a one-month failure to pay may be an annoyance, anything more than that can be enough to throw your whole household budget out of whack. All of us know what has been going on for the past eighteen months as far as inflation, cost of living and the declining purchasing power of the dollar are concerned. We are fast approaching a situation where it is becoming more and more difficult to make ends meet if we do not have everything work out perfectly as far as income is concerned. Household savings rates have reached new lows as credit card debt skyrockets.
What does all of this have to do with child support and missed payments? Quite a bit. If you are a parent who receives child support each month odds are good that you do not think of the child support as something nice to get on top of your other sources of income. Rather, you likely look at child support as a necessity to keep the lights on and the bellies in your house feed. If your ex-spouse misses a child support payment that can cause real problems for you and your children. This is especially true if you have just wrapped up a divorce and are not yet working full-time. As a result, the child support that you receive may be a huge chunk of your monthly income.
Therefore, when your ex-spouse misses multiple payments, you need to be serious about how you are going to address this issue. Taking these missed payments laying down is not going to solve the problem. Think of it like when a wasp gets into your house. It’d be nice to leave for the day and find that the wasp problem just went away. However, that’s not how it works. When you get back home the wasp is still going to be there. You need to deal with the insect head-on before it stings you. Same thing with missed child support. If you do not deal with your ex-spouse’s missed child support payments head-on, then you risk it becoming a problem that is even more out of control than it is now.
In today’s blog post from the Law Office of Bryan Fagan, our licensed family law attorneys will discuss with you the mechanics of filing a lien against your ex-spouse for missed child support payments. What does it mean to file a lien, what is an enforcement case and how can this help you to get back on your feet and get your budget on the right track? After our blog post if you have any questions, 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 where we can answer questions and help you sort out your options in a variety of different family law-related areas.
Enforcement of child support payments
When it comes to missed child support payments you need to be able to hold your ex-spouse accountable for those missed payments. This goes beyond an annoyance and is something that can impact your family on an acute level because of those payments being missed. Your Final Decree of Divorce contains all the orders from the court regarding child support. The monthly amount of child support that you can be paid is the most important order included in your decree. The amount of child support you are paid is typically a product of the number of children you have before the court as well as the income of your co-parent. It can be complicated to calculate that income if your ex-spouse has multiple streams of income but his or her net monthly income will be calculated, and a percentage multiplied against that income to determine the amount of child support you are paid. Or you and your ex-spouse may have come up with your methods to calculate child support based on the specific circumstances of your family.
For instance, if one of your children suffers from a physical or mental impairment that requires specific types of care then you may need more than the guideline levels of child support which are outlined in the Texas Family Code. Doctor’s visits, therapy, specific types of food, and other daily needs of a disabled child can add up quickly in terms of cost. Therefore, it may be necessary for your co-parent to pay more than the guideline levels of support
On the other hand, if you and your ex-spouse share possession of your time on something like a 50/50 basis then you may not require a guidelines level of support due to the frequency with which both parents see your child. You may need to figure out a plan on how to divide up out-of-pocket costs or medical costs, things of this nature. However, since you are both with your child on an even basis there would not be the need for one parent to pay the other a “standard” amount of child support. Or child support may have been assessed in your case based on a difference in income between you and your ex-spouse. This could be a lesser amount of support that can help bridge the gap in your income.
Fortunately, the State of Texas makes it difficult for your ex-spouse to miss child support payments. A wage withholding order should have been completed after the divorce. A wage withholding order is a document that is sent to your company’s human resources department and is signed by the judge. The wage withholding order instructs human resources to withhold a specific amount of money from your paycheck(s) each month. What this does is remove a lot of the day-to-day stress associated with having to remember to send in child support. It is automated, almost like bill pay setups on your bank account website.
The Office of the Attorney General oversees this process on behalf of the State of Texas. Many people who have gone through a divorce assume that the Attorney General represents the parent who receives child support in any legal matter. However, this is not the case. The Attorney General can assist parents in paying and receiving child support payments as well as help parents collect child support payments that are past due. However, the attorney general does not represent you or your co-parent in this process. If you decide to file an enforcement case, then you would need to hire an attorney or represent yourself in the case.
One of the options which you can consider to seek relief from a family court for your ex-spouse has failed to pay child support is to place a lien on the property that he or she owns. This is not a topic that is discussed much in the world of Texas family law, so we wanted to write a blog post about it today. However, it may not be the most practical option for you to choose from. Let’s walk through some of the other options that you could potentially select
Non-lien options for enforcing past-due child support
Probably the most straightforward remedy for getting back child support from your ex-spouse to you is to deduct the money from his or her income. This should have been done already through the wage withholding order that we just finished discussing a moment ago. You can ask that a subsequent wage withholding order be sent to your ex-spouse’s employer so that his or her wages can be withheld to pay back the child support. Note that you all will need to decide at the hearing how much money can be withheld based on the amount owed, or her income and other factors.
Income taxes, lottery winnings, and other sources of money that may be due to your ex-spouse can also be intercepted before getting to him or her and instead sent to you for child support that is owed. Suppose that your ex-spouse was due a refund for their federal taxes. Well, the judge could order that the money instead goes to you. The Office of the Attorney General would assist in coordinating this effort with the federal government so that you could be made whole.
A license of some sort that is owned by your ex-spouse could be suspended. Things like driver’s licenses, a license to practice law, or even a hunting/fishing license could be suspended if your ex-spouse owes you child support. The inability to perform job duties or recreate on the weekends is a good motivator for most people to pay back child support. Once the child support which is owed is paid in full then the license would be reinstated.
There is also the possibility that your ex-spouse could be let’s test a penalty of having to spend time in jail for failing to pay child support. Bear in mind that the sentence could be no longer than six months depending upon the amount of child support that is owed. Additionally, many times a judge will instead put your ex-spouse on deferred adjudication or probation to allow them to work and pay back the Child Support. However, in many cases, even the threat or possibility of having to go to jail for missing child support payments is enough to keep many people from falling behind in that important responsibility.
Modification of child support
Modification of a child support order is another option that could be available to you or your spouse. In a child support modification scenario, you would be asking the judge to increase or decrease the amount of child support that your ex-spouse has to pay each month. A material and substantial change in circumstances would need to have occurred since the last time that you were in family court to justify a request to modify a court order.
In the context of child support, this usually means that someone’s income would have increased or decreased or the needs of your child would have changed over time. Maybe your son needs mental health counseling regularly which is not covered by health insurance. Or your daughter may require regular visits to the doctor for a type of infusion that helps treat an autoimmune condition that she has recently been diagnosed with. Whatever the situation it is important for you to be aware of what those needs may be and to have the evidence to prove to a judge that a modification is necessary.
How does it work to have a lien placed on your ex-spouse’s property?
A lien is a legal instrument that uses the property as leverage for the enforcement of a debt payment. Here is how it works in the context of child support. Your ex-spouse owes $10,000 in back child support. You would like him to pay that child support back to you as quickly as possible. You can file an enforcement case and ask the court to consider placing a lien against some item of property that he owns. Car, boat, or even a personal injury settlement that he won from getting hit by another vehicle while driving home from work. A lien can attach to these assets, and they cannot be sold or accessed (in the case of a personal injury settlement) until a judgment or deal is reached regarding child support.
If he does try to sell the specific item of the property then a portion of the sale from that asset would go towards paying the child support arrearage. You can talk with him or her to come up with a deal that would satisfy the child support owed so that the lien could be lifted. Keep in mind that the appearance of a lien on some property is enough to keep that property from being sold. Many people simply do not want to deal with this sort of issue so the property would have to be sold at a discount or left on the market until the lien can be lifted. What this means to you is that your ex-spouse should be highly motivated to have the lien lifted- or not placed in the first place.
A child support lien puts a freeze on the assets of your ex-spouse. There is another method or tool that can be used to get the back child support that you are owed. An example is a qualified domestic relations order which applies to types of employers sponsored retirement plans. Usually, a retirement plan cannot pay benefits out to anyone who is not named as a planned participant. However, if you go through a divorce and have a qualified domestic relations order set up then money can be paid to you out of your ex-spouse’s retirement plan. A lien can be placed against retirement funds but would only keep them from being distributed. A qualified domestic relations order can force the distribution to occur.
Bear in mind that the placing of a lien on property or assets owned by your ex-spouse is just one of a few different options that can be implemented if your ex-spouse owes you back child support. Unfortunately, this is a situation That happens with some frequency in the world of Texas family law cases. You need to be prepared for this type of event should it happen in your life. At the end of the day, trying to get back child support from an ex-spouse will take some time. If you truly are in a position where you need that money without any time to spare it would be best for you to investigate options where you can earn some extra income for a short period before you can go to court or negotiate a settlement with your ex-spouse. Nobody would say that this is the best option for you or your family, but it is the current situation that you find yourselves in.
Whatever option you choose, understand that enforcement cases in Texas are complicated and have a lot of moving pieces. This is not the type of family law case where it is recommended for you to proceed without the assistance of an attorney. If you find yourself in a position where you need guidance or help in learning your options on how to enforce child support orders then please consider the attorneys with the Law Office of Bryan Fagan. We are inside courtrooms every day on behalf of clients just like you who need assistance in helping to enforce court orders on child support.
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- A Look at Texas Child Support Orders
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