I’d like to spend some time discussing the topic of child support and the role that the Office of the Attorney General plays in administering the reception and disbursement of child support payments in Texas. First, however, I wanted to briefly talk to you about how self-employment income is treated for those of you who will be on the hook for paying child support in your family law case.
Self-employed people pay taxes that go over and above what most people see in their paychecks. Your tax rate would be the same no matter if you were the employee of a corporation or a self-employed person, but there are additional taxes that come to bear on self-employed people. Many times, your income will fluctuate from year to year, so a court would need to get a good idea of what you have earned on average over a period of two or three years.
If your income has gone up recently then your current income will likely be looked to when determining an amount of child support for you to pay on a monthly basis. On the other hand, if your income has decreased in the past year for whatever reason then a court will want to know why has it gone down over that period of time. An average of multiple years of income will likely be looked to when a judge finds himself in a position where a self-employed person needs to be evaluated for child support purposes.
Do low wage earners still have to pay child support?
This is a question that I receive with some regularity. Suppose that you are the parent who will be awarded visitation rights with your children, but you will not be the parent with whom your child resides primarily. As such, you will find yourself in a position where you will be responsible to pay child support. The only thing is, in your eyes, that you don’t earn much income and your soon to be ex-spouse does. Since she earns a lot of money and you earn very little will you have to pay child support regardless?
The answer to that question is, yes. Unless there is something going on in your circumstances that is extremely atypical it is expected that you will pay child support to the other parent in your case. You have a responsibility to provide for your child no matter what your circumstances are, with very few exceptions. If you are able bodied and do not earn any income or earn less than minimum wage, a judge will use the income of a minimum wage earner to determine an appropriate level of child support for you to pay.
Getting the Office of the Attorney General involved in your child support case
The State of Texas, through its Office of the Attorney General, has a role to play in almost every family law case that involves child support. For instance, if your child receives health insurance through the government then it is very likely that the Office of the Attorney General will be a presence within your case. Their motivation for involvement is to ensure that you pay the state back for the benefits that your child is receiving.
On the other hand, your child’s other parent can also contact the Office of the Attorney General to request help in getting child support set up. If you and the child’s mother were never married and had your child together then you can expect this to occur if and when you all stop living together. Many times a mother will contact the Office of the Attorney General even if you are paying some amount of child support on a monthly basis.
Another typical situation where you as a father could end up contacting the Office of the Attorney General in order to start a case would be if you are paying child support of some amount and the child’s mother is not letting you see your child. Keep in mind that even if you are not paying support to your child’s mother, she cannot use the lack of child support payments in order to withhold possession of your child from you. You can contact the Attorney General in order to get visitation orders in place so that you do not have to rely on the “kindness” of the child’s mother to be able to see your child.
The Office of the Attorney General represents Texas, not you or the other parent
One thing that you should be aware of is that the Office of the Attorney General represents the State of Texas in any proceeding before a court. Their interests are to protect the State's interests as far as services being expended on behalf of your child. Even if you or your child's other parent contact them to start a case that does not mean the Attorney General represents either of you. It can look that way if their attorney comes to court and asks a judge to order you to start paying child support, however.
Their biggest goal, in any case, is to keep your child from having to rely upon government programs for any of his/her basic needs. If services need to be taken advantage of, they seek to be paid back by you for those services rendered.
Married persons can contact the Office of the Attorney General in order to begin a child support case. The state will not file for divorce on your behalf but can establish child support orders that are valid even if you are still married. Relying upon the Attorney General to start a legal case for you is rarely the best option that can be chosen due to the fact that they do not represent you or your interests. It is common for the Office of the Attorney General to take months to simply file a child support case, whereas a private attorney (like the ones with our office) can do so on your behalf in a matter of days.
Child Support can be removed from your paychecks automatically
Another reason why the State of Texas may become involved in your family law case is that most child support payments are sent through and received by the State Disbursement Unit. The Office of the Attorney General can better keep track of payments that are received, as well as those that are not received. How much you pay, when you pay it and any arrearage that is owed will be kept track of. You can create an account for yourself through their website and keep track of this information yourself if you so choose.
It is smart, in my opinion, for everyone who receives or sends child support payments to do so through the State Disbursement Unit. This is not intended as a sales pitch for the government or anything like that. The reason why I would tell a client to pay their money through the State Disbursement Unit is that it keeps everyone involved in the process (mothers and fathers) honest.
Imagine a situation where you have paid your child’s mother child support diligently, every month for the past two years. You paid cash or check to her, directly for twenty-four months before she confronts you one day about a missed payment. You look her in the eye and tell her that she is mistaken, but she persists. Eventually, she files a lawsuit against you to recover the child support that she claims that she is owed.
Now, you may have paid her mostly in checks which means that you, your bank or both of you have records of those payments having been made. However, if you made payments in case there is no record of those payments having been made. You do not receive "credit" for those payments under most court orders. So while you may have thought you were doing your child’s mother a favor by paying her directly, you inadvertently put yourself in a position where you would have to defend yourself against a dishonest person’s allegations.
At the very least, you will have to hire an attorney to represent you in court. At the most, you could be assessed jail time for the failure to pay child support on time and in full. Either of these two outcomes could have been avoided if you had only chosen to send payments of child support through the State Disbursement Unit. Do not let your child’s mother complain to you about how long it takes for her to get the money to her account. As long as you are paying those checks on time then you have nothing to worry about.
Automatic deductions from your paycheck may be the best option for you and your child
Even though it can feel a bit odd at first to have money removed directly from your paycheck in order to pay for child support, this is probably the best option available to you. Like we just finished discussing a moment ago, when the money is taken from your paycheck directly there is no question that the correct amount will be withdrawn or that the amount will be credited to your account.
The way that this occurs is that a Wage Withholding Order will be sent to your employer from the judge that authorizes the withholding to occur. The child support will be sent to the State Disbursement Unit directly. Keep in mind that it is your responsibility to make sure that the payments are made in the full amount, no matter how much you are paid for each pay period. For example, if you are paid on a commission-only basis and you know that an upcoming check is a less than normal amount then you will need to pay the difference in order to remain current.
What happens if you do fall behind in your child support payments?
In the event that you begin to fall behind in paying your child support payments, an arrearage will begin to develop. You may be able to avoid going back to court and held responsible for this arrearage but at some point, your child's other parent or the Office of the Attorney General will file an enforcement lawsuit against you. An enforcement lawsuit will seek to enforce the child support orders that are currently in place.
An enforcement petition carries with it certain elements of criminal proceedings, specifically jail time in certain cases. A lawyer can be appointed to represent you if you do not have the means to hire one yourself. Fines, contempt of court findings and having to pay the attorney’s fees of your child’s other parent are other possibilities that may come from an enforcement case.
In most cases, you will not have to be overly concerned about serving time in jail for any child support arrearage if it is your first time going to court for the failure to pay child support in time and in full. Those people that either has a very large arrearage or have found themselves in court on multiple occasions for the failure to pay support can run the risk of serving time in jail. As a result, having a lawyer with you is an absolute must. Hiring one on your own is your best course of action to take. Otherwise, you can qualify to have the court appoint you an attorney if you qualify as being economically disadvantaged.
Questions about child support? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are experienced in handling a variety of cases including child support. We offer free of charge consultations six days a week here in our office where your questions can be answered. Thank you for your time and consideration. We hope that you will join us tomorrow to discuss additional subjects related to child support in Texas family law cases.