Modification or Enforcement cases can be filed either by you, your attorney or by the Office of the Attorney General. Many people have into the Law Office of Bryan Fagan for a free consultation to tell us that their ex-spouse has hired the Office of the Attorney General in order to file a child support enforcement lawsuit against him or her. Right off the bat I want to point out that the Office of the Attorney General does not represent your ex-spouse in an enforcement case. Likewise, they could not represent you, either, had you contacted them about being owed back child support.
The Office of the Attorney General represents the State of Texas and its interests. When it comes to child support matters, the interests of the State of Texas lie in not having your child rely on public assistance for food, shelter or medical attention. If your child is on any of these public assistance programs the Office of the Attorney General will get involved if you not paying child support or medical support to offset these costs that are borne by the State of Texas.
What exactly is a child support enforcement case in Texas?
An enforcement case occurs when you have violated a court order in some regard. The way that you will be held responsible for the failure to pay child support is that your ex-spouse will file an enforcement lawsuit against you. The enforcement lawsuit itself will take note of the specific dates on which you failed to pay child support, how much is owed and a grand total of the amount of child support yet to be paid. This information is not the opinion of your ex-spouse. It will be pulled directly off the website for the Office of the Attorney General.
A motion for enforcement will be filed with the court. A hearing date will be assigned to you and your ex-spouse. You will be served with notice of this hearing date either by a private process server or by a constable. A citation will include the information for your hearing as well as information about the date, time and location of where you were provided notice of the hearing and copies of the documents filed against you.
In this hearing you would need to be able to present evidence that contradicts the enforcement lawsuit. Your ex-spouse will attempt to offer and introduce evidence that shows that you have violated the court orders related to child support payment. Your ex-spouse will also request specific punishments for you in response to your failure to pay the child support. As we will touch on in a moment, a potential consequence of your having failed to pay child support is jail time.
Even if you are not assessed jail time for your failure to pay child support then you will almost certainly be fined, made to pay court costs, have a court order instituted that orders you to pay the back amounts of child support by a certain date and may even have your professional licenses suspended until the time that you begin to pay the child support back.
When should a motion for enforcement be filed?
This is a question that potential clients will ask all the time. There ought to be enough violations that have occurred for you to file an enforcement lawsuit. If your ex-spouse has only missed one child support payment and you are owed “only” $500 then it probably isn’t worth your time and money to miss work, hire an attorney and go to court for $500 and some ancillary costs and attorney’s fees.
What our office will do when a person hires us for an enforcement is that we will send the opposing party a letter noting the violations of the order so that he or she can review them with us. Next, we will propose a solution to the problem and allow for some negotiation as to how to remedy the situation. If mediation can be scheduled that will also be done. It is a last resort for all parties involved to have to file an enforcement lawsuit.
Mediation allows you and your ex-spouse to once again sit down at a metaphorical bargaining table to see if you all can’t hammer out a settlement of your issues. For instance, I had an enforcement case some time ago that we were defending a client on. The opposing party had filed an enforcement based off one violation of the order. While we did not go to formal mediation, I and the opposing party’s attorney were able to help the parties avoid going to court and helped them to settle a number of other issues that had been problematic for the two since their divorce.
All in all, it is usually better to wait to file an enforcement lawsuit (or any lawsuit, for that matter). Exceptions to this rule would be if you or your children are at risk of physical, emotional or other harm. If a missed child support payment occurs it may be a mistake on your ex-spouse’s part and not some malicious desire to put you behind on your bills. Attempt to address the problem directly, talk to an attorney and then continue to negotiate and see if a solution can be reached without having filed a lawsuit. The solution you get may be better for everyone involved and it can avoid the bad taste that lawsuits invariably leave for all persons involved.
Why having the Office of the Attorney General help you may work to your advantage
If you are owed child support by an ex-spouse and are not able to file an enforcement lawsuit on your own it may work out to your advantage to have the Office of the Attorney General file the lawsuit. I would tell you that this is true if your case is straightforward and doesn’t have many moving parts of complicated fact patterns. The money that you save could be significant in that you do not have to hire an attorney, at least to file the lawsuit. Whether or not you need to hire an attorney for the case itself is up to you.
Keep in mind, however, that most child support cases are not the run of the mill, “easy” situations that may not require a lawyer’s assistance. In that case, you need to hire an attorney to represent you. Likewise, if your ex-spouse has reached out to the Office of the Attorney General to file an enforcement lawsuit, you need to hire an attorney of your own. Even if your ex-spouse doesn’t have a lawyer you need to hire one. Remember- the worst that can happen to your ex-spouse is that she is told that you don’t have to pay any child support, or she gets less back in support than she had hoped for. As someone who is being accused of not paying child support, the potential consequences of your case are much more significant.
Expect the following things to happen with the Office of the Attorney General files a lawsuit
A motion for enforcement can be filed against you by the Office of the Attorney General. It is likely that this enforcement lawsuit will be in regard to the alleged failure of yours to pay cash medical support or child support as ordered in your final decree of divorce. A IV-D court in Harris County will usually be the the site for where these cases will be held by a judge. The Office of the Attorney General will have a “bullpen” of mainly young attorneys who will represent its office in your case.
These attorneys have a relationship with the judge and the court. They work there every day. In case you haven’t noticed, you do not work there every day. They are comfortable in the courtroom and have worked on hundreds of cases just like yours. You may be a very educated person yourself but it is unlikely that you know much of anything about child support enforcement cases in Texas. They are on their home turf, you are the away team with no cheering section in sight.
My point in telling you all of this is that if you believe that you can move forward with an enforcement case in Texas without an attorney to represent you, I would recommend you reconsider. For one, the court will appoint you with an attorney if you can prove that you cannot afford one. This is not going to be a simple statement to a judge that you need to have a lawyer appointed. Rather, you will need to show that you are not working, have no means of earning an income, have nothing you can sell to pay for a lawyer and that you are receiving government assistance. If you can do so then you will likely be able to have an attorney appointed to represent you.
Once you are served with notice of the enforcement case having been filed against you then you will also be alerted as to when your court date will be for an initial hearing with the judge. Keep in mind that it is possible that the end result of that hearing could be that you are sent to jail for the failure to pay child support. I’m saying that this is likely or that this will happen, but because an enforcement case is quasi-criminal in nature, there is a possibility that you could be assessed jail time depending on the circumstances of your case.
What happens if you cannot attend court or choose not to?
If you have ever been sent a letter stating that you have jury duty, the thought has probably crossed your mind as to whether or not you will attend. Now, I would never recommend that you not go to jury duty. It is an obligation that we all have as citizens to participate in the legal process. It is a privilege on many levels to attend jury duty.
With that said, it is not fun to attend jury duty and you likely have other things going on that you need to attend to that jury duty would divert your attention from. So, if you do not attend jury duty that is a decision that could wind up with you having to talk to a judge. In some situations I have asked people what happens if you don’t attend jury duty and they have told me that nothing happens at all. You can refer to a jury duty notice to see what the exact penalties are for failing to attend.
All of this is to say that if you do not attend your court date for a child support enforcement hearing then that is something that will certainly work against you- both in the short and long terms. If you do not appear in court as ordered by the judge then you will find out that a warrant will be issued for your arrest. It is not suggested that you attend court on that day. Rather, a judge has signed an order that instructs you to attend court or face severe consequences.
Questions about enforcement cases in Texas family law? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan thank you for your time today. We enjoy being able to share some insights and information on various areas within Texas family law. Our years of experience working inside the courts of southeast Texas have allowed us to develop a sense of what to expect inside and outside the courtroom. We hope that you have learned something today and look forward to any questions you have for us.
If you do have questions about today’s blog post or are interested in speaking to an attorney about your case, 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 where you can ask questions and receive feedback about your particular circumstances.