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For all the various areas of child support that the Law Office of Bryan Fagan serves clients in, child support continues to be among the most contentious. This is not something likely to change. There are so many dynamics in place that make child support an emotional subject. There is the well-being of your children. Next, there is money being paid from one parent to another. Often you and your co-parent have just gone through a divorce. To say that you two are not on the best of terms would be an understatement.
Outside of the family law-related areas of your case, we have real-world considerations that all of us are dealing with right now. The fact is that life is expensive, and we are feeling that pull on our budgets right now. Speaking of which- do you have a household budget? If not, then even the smallest disruption to your income or your expenses can throw you for a loop. The attorneys with the Law Office of Bryan Fagan recommend regular budgeting every month whether you are the parent who pays or receives child support.
In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss child support arrearages. Arrearages is a $10 word used to reference child support that is owed. Whether you pay or receive child support today’s blog post is an interesting and important one. Any questions you have after reading the blog post should be directed to the experienced family law attorneys with the Law Office of Bryan Fagan.
Who pays and who receives child support in a family law case?
Various rights and duties concerning children are assigned in a family law case. One of those rights is the right to receive child support. The parent who receives child support in a Texas family law case is known as the custodial parent. A custodial parent also has the right to determine the primary residence of the children. This means that the child lives with that parent. In short, being the custodial parent carries with it many advantages.
On the other hand, you are the noncustodial parent when you have the responsibility to pay child support. A noncustodial parent does not live with their child throughout the workweek but does typically have a possession schedule. This possession schedule is often molded in the likeness of a Standard Possession Order. Alternating weekend periods of visitation, holiday possession which alternates based on the year and extended summertime visitation are all hallmarks of a Standard Possession Order.
This is the backdrop of child support for a Texas family. Going through the details of child support are more complex, however. Today’s blog post delves into the topic of child support arrearages, specifically. Have questions about other subject matter related to Texas child support? This is a good reason to contact the Law Office of Bryan Fagan today. We work with families like yours to manage difficult circumstances involving child support arrearages.
Why could you owe child support?
Owing child support is an undesirable situation. Not only are you late paying an important “bill” but it is likely your child is going without something in the meantime. The amount you pay in child support goes to help pay housing costs, food, and other necessities. While nobody necessarily likes the idea of paying child support to an ex-spouse or co-parent this is how the system works. Abiding by that system helps to ensure that your child has the necessary means to live month to month.
However, all of this also forces you to come face to face with the reality that income problems exist. Sometimes you have little control over the disruptions in income that impact your life. For instance, have you experienced job loss, job interruption, or a decrease in hours over the past few months? Going back to the days of the pandemic, I recall many parents struggling to make ends meet. Not to mention being able to make that monthly child support obligation.
Whatever your situation is, understand that it is not abnormal to fall behind in child support. On top of that, many parents in your shoes often feel guilt for this inability to pay child support on time or in full. What ends up happening is that the parent in your shoes gets paralyzed by fear and/or guilt. This is a recipe for disaster when you consider that there are options to help you in a situation like that. However, it is not easy to take advantage of those options when you are stuck in a rut.
Budgeting is a friend to the child support parent
Paying child support means that you have an additional budget item which many parents do not. Having to contend with this expense means that an already tight monthly budget is pushed to the brink of collapse. Creating a monthly budget that you plan for is critical to your success. A budget does not constrain you or force you to do things you don’t want to do. Rather, a budget permits you to spend money because you know it is there in your bank account waiting for you.
Likewise, as a parent who receives child support, you must have a budget, as well. Understanding your expenses is important when you rely in part on child support each month. Imagine a situation where you do not receive the full amount of child support at the beginning of the month. What would you do? Is there any wiggle room in your budget to make sure that your house stays afloat in a situation like this? Having a budget will tell you that. This also determines how quickly you need to move to address the issue with your co-parent.
How is a child support arrears case brought before a court?
Once you fall behind in child support it can feel like you are underneath an avalanche that you cannot recover from. Feeling buried alive with your finances is not a fun experience. There is only so much money to go around each month. When that money is strained to the breaking point you have few options but to pay the bills you need to pay and let everything else stay unpaid until you get back on your feet.
The first month when you don’t make a child support payment does not mean you are going to court immediately. Unless you, your co-parent, or the Office of the Attorney General files a lawsuit there is no reason to expect that you would be going before a judge. An enforcement case is the type of lawsuit that is filed when you stop paying child support. What an enforcement case does is seek to hold you responsible for the failure to pay child support. It is enforcing a prior court order.
An enforcement petition filed by your co-parent, or the OAG informs a judge of the type of violations involved in the case. Missed child support payments mean that the date of the violation and the arrearage resulting are listed in a petition. The judge would then hold a hearing where your co-parent and/or the OAG attempt to submit evidence to show that you have missed your payments. Since the OAG keeps an up-to-date ledger of your payment this is the primary means to prove a child support arrearage.
Meeting an enforcement case with a modification case
To counter an enforcement case for child support you can file a modification case. This is in addition to answering the enforcement lawsuit. A modification is an acknowledgment of changing circumstances in your life, that of your child, or that of your co-parent. In this situation, you would likely ask the court to modify your child support orders due to a change in income. As we discussed earlier your income can fluctuate over the years, This could be due to changing jobs or even losing work for an extended period.
When you find yourself in this type of situation it is important to be specific with the court. A child support modification is a major family law case. It involves altering past court orders. Additionally, a material and substantial change is a significant event in your life that requires evidence to prove the point. Knowing the Texas Family Code in addition to legal writing experience is important.
Working with an attorney with the Law Office of Bryan Fagan is an essential part of success for many of our neighbors here in Texas. We serve clients throughout the state of Texas in family law matters. An enforcement case means facing severe penalties if found to have violated the court order. Likewise, a modification case requires precise arguments in writing. It is best to work with one of our experienced attorneys in these cases rather than go it alone.
Chenault v. Banks
The child support case in question that we are discussing today is Chenault v. Banks. This is an appellate court that comes to us out of the fourteenth district court of appeals in Texas. An appellate court, as you may have guessed, hears appeals from lower court cases. This is a case that came out of a Harris County (Houston) family court. When a party does not like the outcome from their family court case it is possible to file an appeal to the local appeals court.
A mother did that exact thing here. The appellant (appealing party is named Deborah Chenault. She is appealing the decision of the Harris County family court which confirmed $5,105 in child support arrearages in her case. The party who is responding to the appeal is a woman named Patricia Banks. She is the executor of the estate of a deceased father named Horace A. Paul, Jr.
Chenault and Banks got a divorce in 1985. Paul was ordered to pay Chenault child support each month totaling $300. The child support needed to be paid until their son graduated from high school or turned 18- whichever occurred later. Nearly twenty years later, in 2006, Chenault filed an enforcement lawsuit against the Banks stating that her ex-husband had paid only $21,900 or the $57,300 in child support obligations to that point. Mom is seeking the nearly $36,000 difference plus interest and penalties.
Dad’s estate throws in a curveball
Banks, on behalf of Paul’s estate, submitted evidence that upwards of $18,000 was paid towards a military boarding school that the son attended for one year. The trial court agreed that this amount should be applied to the arrearage alleged by the mother. Based on this, approximately $5,000. This is a far cry from the amount Mom was seeking. So, she appeals the trial court’s decision.
First off, the appeals court found that the trial court abused its discretion in applying a credit to the arrearage for money paid toward boarding school tuition. The court reasons that the credit acts as a private agreement to modify a child support obligation and is against public policy. Thus, that is unenforceable. No credit for those payments would be allowed. A modification for child support must be done through the family courts of Texas to be enforceable.
Dad’s estate makes an argument that Mom voluntarily relinquished possession of the son during the time he was in military school. Voluntarily relinquishment is a defense to not paying child support. An offset in child support is allowed if Dad can successfully prove this affirmative defense. Since there was nothing in the evidence to suggest that the mom agreed to voluntarily relinquish care and possession of the child this argument did not hold much water with the court.
Mom wins in the child support arrearage case
Ultimately agreed with Mom in this instance. A major part of the award in Mom’s favor was the failure of the trial court to award interest. The appellate court found that the trial court was obligated to award interest under the circumstances. Prior appellate courts held that interest was mandatory in a Texas child support case involving arrearages. The trial court had no right, the appellate court argued, to not award interest. Throughout twenty years interest accrued at a significant rate.
What does this tell us about your case? There are several takeaways from this case in my opinion. First, having competent and experienced legal counsel is important. Mom filed an enforcement case asking for a major amount of money. She had to figure out how to navigate the divorce decree. Mom needed a plan to counter the faulty argument of the trial court. She also needed to be able to figure out how to serve and notify her ex-husband’s estate of the pending case.
All of this takes experience to know how to do it. Instead of focusing all her time on figuring out how to get the case off the ground, Mom could focus her attention on the facts and circumstances of the case. How she could navigate and gather the evidence needed to be successful In a case. The attorneys she chose to represent her helped in this regard. The attorneys with the Law Office of Bryan Fagan can help you in the same way.
Final thoughts on child support arrearages
There is no question that child support is a touchy subject for many families. Additionally, it is a complex subject involving the law and your family circumstances. No matter what your relationship is to child support the important thing to bear in mind is that you need to be prepared for subsequent legal cases. We discussed how budgeting helps to prepare you on a month-to-month financial basis. However, there are additional safeguards to put in place for your family.
Having an experienced family law attorney by your side is a game-changing advantage in a child support enforcement case. As we at the Law Office of Bryan Fagan are fond of saying, hiring an attorney is a short-term investment into your long-term future. Do you think the mother in the appeals court case discussed today would agree? I think she would.
Thank you for choosing to spend some time today on the blog for the Law Office of Bryan Fagan. We pride ourselves on serving our clients with the utmost professionalism and care. To learn more about us and how we can help your family please reach out to us today. Also, please join us tomorrow on our blog as we continue to share relevant and interesting blog posts on the world of Texas family law.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, 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. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
