In the event that you fall behind in paying child support, there are consequences that you need to be aware of. Even if the other parent never brings the issue to the attention of a court that doesn't mean that the issue will go away. Past due child support is something that is dealt with in courtrooms across southeast Texas every day. Your ability to pay child support is not a month to month analysis. Rather, you are ordered to pay a certain amount of child support on a monthly basis until your child turns 18 or graduates from high school.
The Office of the Attorney General can file an enforcement lawsuit against you even after your child turns 18 in an effort to collect on any amounts of past due child support that is owed. With interest causing the amounts owed to grow larger and larger you need to assess what your strategies are for not falling into the trap of child support non-payment.
What to do when your child lives with you for an extended period of time
The whole theory behind your paying child support is that because your child does not reside with you primarily, that is more time that he spends with his mother. She should not have to carry that burden on her own without you paying something to even out the costs of raising your child. Thus, you pay child support on a monthly basis to level out the costs associated with taking care of a child.
That theory no longer holds if your child comes to live with you on a primary basis. This could happen because your child’s mother becomes ill, has to attend to other matters and is unable to care for your child or for any other reason. The point is that if your child comes to live with you for an extended period of time this means that you are still liable to pay child support. What should you do to make sure that you are not having to continue to pay support for an extended period of time?
First, I would recommend that you contact the Office of the Attorney General to let them know what is going on. They will not be able to change the child support orders but they can be made aware of any periods of time that you should receive a “Credit” for paying support when you do not have to. Next, you can also ask them to change your status as a noncustodial parent and change that to a custodial parent. This can trigger a court date where your status can be legally changed. At that point, you would no longer be responsible for paying child support moving forward.
Can noncustodial parents start a child support case?
Many people operate under the mistaken assumption that only the parent who has primary custody of a child can initiate a child support case. However, you acting within your role as a noncustodial parent may do the same. You may do so either through the Office of the Attorney General or through a private attorney. The Office of the Attorney General route is one where you should proceed with caution, however.
The reason being is that the Office of the Attorney General does not represent you or your interests in a child support case. Their office owes a duty to the State of Texas and their ultimate goal is to do whatever they can to keep your child from having to rely upon state-funded programs for medical care, food, shelter or all of the above. If your child has to rely upon these programs, child support will be received in order to reimburse the state for having to provide these services to your child.
An informal settlement conference will be set up for you if you choose to file a case through their office. This settlement conference will occur not in a courtroom or with an attorney, but likely in a commercial area where a storefront states Office of the Attorney General- Child Support Division. In my area of town, an old Randall’s shopping center has been taken over in part by the Office of the Attorney General.
I have represented a client in one of these informal settlement hearings and it is basically a chance to see if you and your child's mother agree on a specific amount of child support. If you don't, or you don't come with documents showing how much income you earn, there is no shot at finalizing your case in this setting. In the event that no settlement is reached your case will be set for a hearing in child support court. A lawyer for the attorney general's office, you and your attorney, your child's mother, and the judge will be present.
How much child support do you have to pay ultimately?
This is the million dollar question. At the end of the day, how does the State calculate child support and what is your number going to be? Either way, no matter if you are going to be receiving or paying child support, you are likely to be frustrated with the result. From a father’s perspective, you want to do as much as you can to help your child. However, it may be irksome that you have to pay this money to the child’s mother- a person you may not be on the greatest of terms with.
From your child's mother's perspective, child support pay pales in comparison to the actual costs that she incurs on a weekly basis. Child care, groceries, clothes, etc. all factor into what a primary conservator deals with. Add to that the stress of raising the child on a near daily basis and you have a potentially combustible situation. If that mother depends upon your child support as her primary source of income then it is even more stressful and emotional.
Your net monthly income (gross income minus taxes, basically) is the number that the Office of the Attorney General will be working from. After that number is determined, a percentage is applied against it to figure out your monthly sum of child support. For one child you would pay 20% of your net monthly income to the custodial parent in the form of child support. As you increase your children before the court, the percentage raises 5% on up until 40% of your net monthly income is paid towards the support of five or more kids.
One additional point to keep in mind is that if you are responsible for caring for other children who are not presently before the court, you will be able to receive a credit for them in your child support calculation. So, if you have one child before the court in this child support case and you have another child from a prior relationship who is not involved with this case you would be responsible for paying 17.5% of your net monthly income to support, as opposed to 20%.
If you are out of work to do you still have to pay child support?
Just because you are not working at the moment does not excuse you from paying child support. I have seen examples of men (and women) who will mysteriously lose their job or have their hours cut back significantly right about the time that they have to go to child support court. No matter- the judge will either determine how much you used to make and then assess you a child support figure based off of that number or will assess you a child support figure based on a hypothetical income if you had been earning minimum wages.
The reality is that you will not escape from the responsibility to pay child support. The best thing you can do is to come prepared when it is the day of your hearing. Come with pay stubs and tax returns to verify your wages. Remember, the one advantage that you have over all of the other people in the courtroom with you on the day of your hearing is that you can out-prepare them for your particular case. Nobody has access to the same information as you do. They can speculate on your income, but if you come with documents you will be in a better position that they are.
Where do you send your child support payments to?
Odds are that if you are employed, a Wage Withholding Order will be sent to your company’s payroll department in order to send a portion of your paychecks to the child support division of the Office of the Attorney General. While it may seem odd and even a little uncomfortable to have a portion of your check taken from you before you can spend it, this is actually a very good practice for you and for your child’s mother.
From your perspective, you ensure that the money is paid in the correct amount, on the correct date- every single time. There is also a record of your payment kept on the Attorney General’s website that shows the date on which all payments are due, how much you paid on each date and what amount (if any) is currently owed. This way you are not susceptible to the untruths of your child’s mother if she wants to potentially argue that you owe her child support money.
From her perspective, she knows that each month her child support is going to be paid to her on a certain date in a certain amount. If she ever has to file a child support enforcement against you then she has an accurate record of what has been paid and what has not been paid.
Can the Office of the Attorney General open up a child support case on its own?
I talk to men on occasion who will come into our office to speak to us about a child support hearing that they have coming up. These guys will be confused because they never requested a hearing date and to their knowledge, their child's mother did not either. The question remains: do you have to appear for a child support hearing that you did not request?
Yes, the Office of the Attorney General can file a case and does so automatically when your child applies for assistance from the government in education, housing, food, and health care. Medicaid is the biggest one that I find triggers this automatic filing of a child support case. Your child's mother, while not represented by the Attorney General, has interests that are in line with those of your opposing party.
If you encounter custody or visitation issues can the Office of the Attorney General file a case for you?
When it comes to any issue other than child support, the Office of the Attorney General is not authorized to do anything. If, for example, your child’s mother is not allowing you to see your child because you are not able to pay child support, then you would need to hire a private attorney to enforce your custody and visitation rights.
How to establish paternity in Texas- tomorrow’s blog post topic
If you have any questions about the paternity process then you ought to head back to our blog tomorrow when we pick up on that topic. In the meantime, if you have any questions about the material that we covered today 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 here in our office.
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