In the state of Texas, bills from the legislature which are passed into law go into effect on September 1st. This year was the 88th legislative session in Texas and one of the bills that was ultimately passed through both chambers of the legislature and was signed by the governor related to the world of Texas family law. Since we at the Law Office of Bryan Fagan seek to update our community and neighbors as much as possible on changes in the law, this was one topic that we wanted to write about extensively.
The specific bill which passed into law this year is known as Senate Bill 870 which relates to child support enforcement. A quick rundown of the bill is that family courts in Texas now have greater authority in being able to order parents who owed child support to search for and obtain employment. Additionally, the court now has the authority to enroll parents into employment programs whether that is their preference, or not. The motivation behind passing this bill was to create an atmosphere where parents who are perpetually behind on child support feel motivated and pressured into doing everything possible to find work rather than continuing to stay behind in their payments.
Additionally, the new law does not stop there. Updates are seen in enforcing prior orders for child support, modifying child support, and the placement of liens on property as a method of recouping back child support. Many people do not know that a potential consequence of violating a child support order is to find yourself facing jail time. With the stakes being as high as they are when it comes to child support this is a law that has caught a lot of people's attention and is one deserving of a detailed overview.
A review of Senate Bill 870
Since there are so many moving parts and pieces to this bill it is a good idea to go through each subsection of the new law to help all of us understand better what consequences may be observed in the coming years as the state clamps down on parents who have fallen behind in paying child support. Recall, that child support is ordered in family law cases to ensure that both parents of a child are contributing to their material well-being. The Texas Family Code has guideline levels of support which are laid out as the basis for paying child support in Texas. Contained in the child support orders for a family are instructions on how to pay child support, how much to pay, and how frequently that child support must be paid.
When a parent begins to fall behind in child support that puts their co-parent in a position where he or she may not have enough income to be able to afford the essentials for a child. If you are falling behind in child support, then it is a good idea to communicate as clearly as possible with your co-parent as to why this is the case. Communicating clearly can remove a lot of the questions surrounding child support and can allow your family to be able to better work through any temporary issues you may be having as far as your income is concerned. By choosing not to communicate with your co-parent you are putting yourself in a position where he or she has no choice but to assume that you are choosing not to make child support payments when in fact the reality may be that you lack the income at this time to do so.
Section 154.017 of the Texas Family Code now states that when establishing, modifying, or enforcing a child support obligation, a court may issue an order requiring an unemployed or underemployed parent to enroll and participate fully in a program available in the parents’ community which provides employment assistance, skills training or job placement services. Right off the bat, I will note that when a parent is ordered to do something by a court their failure to go ahead and follow that order can result in them being held in contempt of court. This carries with its severe monetary penalties as well as penalties associated with potential jail time.
In this situation, when we look at a court either establishing, modifying, or enforcing a child support order we can look at child support cases from their beginning to their result. Ideally, once child support is ordered in your case you and your child's other parent will never have to return to court to deal with any issues related to child support. However, circumstances oftentimes do arise where families need to go back to court to address an issue. The two most common situations after a divorce or initial child custody case where child support will be discussed are in the context of a modification or enforcement case.
In a modification case, either parent may argue to a court that a material and substantial change has occurred where the child support order is no longer appropriate. We see this happening in a situation where more than three years have passed since the initial child support order was issued and the amount of support currently ordered is either $100 or 25% greater or less than the appropriate level of support based on the circumstances of the paying parent or child. The reality of the situation is that this comes up a lot of times when the parent who pays child support changes jobs, receives a promotion, or is let go from employment. These are situations that can potentially alter the financial makeup of a family in significant ways. As a result, a modification may be sought.
As it pertains to Senate Bill 870, it is foreseeable that a parent who pays child support may file a modification to decrease the amount of child support that he or she must pay. In the context of this Senate Bill, a parent may choose to become unemployed or underemployed with the motivation being to pay less in child support. This is where the other parent would need to submit evidence to the judge that an underemployment situation is occurring. A judge now can hold this parent accountable for their actions.
The text of this new law is clear that a family court can order a parent who is determined to be unemployed or underemployed to take steps to enroll in skills training or other employment assistance which can help that parent find suitable work that can then allow for child support to be paid. The new law goes so far as to allow a judge to order that a parent have a plan in place to make sure that child support is paid and to participate in activities that will allow for that child support to be paid on an ongoing basis.
Additionally, if an enforcement case is brought by a parent who is ordered to receive child support, then a judge may make an additional finding that the paying parent needs to enroll in a job placement service or other activity to help increase their number of skills or assist in helping that parent find suitable employment to pay for child support moving forward. While enrolling in a jobs placement course or other program is no guarantee of finding work it allows a court to be able to help hold parents accountable who otherwise may be able to avoid paying child support.
The releasing of child support liens
A lean is the legal right of a creditor or lender to sell the property of another person or entity if a contractual obligation is not satisfied. In the context of a child support case in Texas, a lien can be issued against the property owned by a parent who owes child support in favor of a parent who is owed child support. This lien acts as an encumbrance upon the property of the paying parent and should motivate him or her to become current on child support payments.
The new child support law allows for a parent who obtains a lien on their co-parent’s property to then release that lien in part or in full if assurance of the payment is considered adequate by the parent or if releasing the lien allows for the child support to be collected easier. This is not a situation that occurs with great frequency in the world of Texas child support. However, in situations where an enforcement case is filed, and a judgment is obtained against the parent who owes child support then a lien is an option for a judge to hand down as far as a punishment is concerned.
Adjusting child support obligations for a parent serving time in jail
It is a possibility that a parent has a legitimate reason for not paying child support based upon that parent having to serve a sentence in state, local, or federal prison or jail. The parent may have been a steady provider of child support up until the time he or she was ordered behind bars. Now that the person is unable to work and earn an income it would follow that this person also has a decreased ability to pay child support. However, there are no exceptions listed in child support orders and a parent must pay their child support on time and in full no matter what their circumstances may become. When you are working you at least have the means to pay child support to some extent. However, when you are behind bars then you cannot earn an income. This may seem obvious to us but is not always something that is considered by courts when assessing potential punishments in an enforcement case, for example.
What we see when it comes to this new law is that it allows judges to adjust the amount of child support, medical support, and dental support to amounts that are based on the child support guidelines for a parent’s net resources during incarceration. This means that if you had to serve a period in jail then you would not be obligated to pay child support to the extent that you had previously been ordered to do so. This would seem to be a reasonable outcome in that it would allow a parent to not fall as far behind in child support as they otherwise would have considering the length of their confinement in jail or prison.
There are exceptions to the rule, however. First, if the incarcerated parent is behind bars because he or she violated a child support order, then this protection would not apply to them. Next, if the crime involved in the incarceration is related to an offense constituting an act of family violence that was committed against the other parent or a child then, likewise, the judge would not be able to order a reduced amount of child support. Any adjustment made administratively by a judge would impact only child support mode after the proceeding it would not impact any child support owed before the court making that adjustment.
Modifying child support after a parent is released from jail or prison
In a child support case, once a parent is released from jail or prison, the court would need to then review that parent’s support order to determine if modification is necessary. Modification of child support may be necessary if a parent has lost employment or otherwise has changed employment due to their incarceration. This happens quite frequently in scenarios where a job cannot be maintained because of a prolonged jail or prison sentence. What income may have been earned by a parent to that point may no longer be viable due to a change in employment or employers.
What does this mean in the long run? Usually, a modification case needs to be filed by a parent. A parent would observe that there is evidence sufficient to suggest that a modification, either up or down, in child support is necessary. That parent would then serve a petition to modify upon their co-parent and would request a hearing with the judge. Whether in mediation or before the judge a decision would be reached regarding whether child support ought to be increased or decreased and for what reason. Remember: a material and substantial change needs to have been observed or a court will not be able to consider whether the requested modification is even in the best interest of a child.
Much of the time after a parent is released from jail or prison, he or she will attempt to find suitable housing, reconnect with employment opportunities, and otherwise catch up on everything that he or she has missed out on over the past several months or years. This puts that person in a position where they are susceptible to falling behind not only in paying the essentials for their own life like rent and utility bills but also in essentials for their children like child support.
If you find yourself in this position, then you may not even know about the legal avenues available to you when it comes to child support. If you find that you are in no position to be able to reclaim your past job or find a suitable replacement, then you may not be able to afford to pay child support at all right now. You may be embarrassed by this and may choose to avoid the subject altogether. This is taking a bad situation and making it even worse because you are going to be falling further behind in child support.
What this new law allows for is a judge to take a review of the situation administratively and make modifications to the child support order based on your current situation. This may require you to provide updated information and evidence to a court and would allow for your co-parent to do the same, ostensibly. However, the thrust of this section of the new law is to be able to help parents get back on their feet after serving time in jail or prison.
As you can see, Senate Bill 870 is quite ambitious when it comes to updating and changing the Texas Family Code and its provisions on child support. From enforcement to modification, to assisting the parents who pay child support and those who owe child support, the new law addresses several deficiencies in the Family Code and will hopefully help families like yours in the future. The attorneys with the Law Office of Bryan Fagan welcome you to contact our office today with any questions you may have about this new law or simply to talk to us about your circumstances and how we may serve you in any matter related to Texas family law.
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Other Articles you may be interested in:
- Child Support Modification in Texas (Part 1)
- What do I do if I have overpaid child support in Texas?
- Texas Child Support – Trust and Annuities
- Examining the newest Texas law on child support enforcement
- New Texas child support law seeks to hold impaired drivers accountable
- What Kind of Support Does a Guardian Provide in a Family?
- Child Support Modifications: Adapting to Economic Shifts and Life Changes
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- What Is Used To Determine Child Support In Texas?
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- Navigating Child Support Modifications: A Comprehensive Guide