Dallas Divorce Lawyer Blog

You've been through a divorce or a suit affecting the parent-child relationship, and the other party was ordered to pay child support by the Court, the terms of which were all located within the Court's final orders. With all orders of child support, the orders state how much the obligor (responsible parent) is supposed to pay, how often they have to pay, and to whom they make the payment (in most if not all cases, the state disbursement unit). However, it's been several months, or even years, and the other party has failed to comply with the child support order. You need financial help in raising your child; but you've reminded the other parent time and time again about this, and they still refuse to help you. So, you contact your attorney at Guest & Gray, P.C. who informs you that there is a solution--motion for enforcement.

Within this motion for enforcement, you will plead the dates that the child support payments were due, the amount that was due, and the amount that was paid. So, for instance, if the obligor was ordered to pay $200.00 on the first day of each month, and they just didn't make a payment at all, then the amount paid would be $0.00. And, if they did make a payment of some amount, you can list that. But, the reality is that they were ordered to pay a certain amount, and that amount needed to be paid in full.

Because the obligor has failed to make their child support payments, then they are now in what is called arrearages for child support. This means that they have an outstanding balance. In pleading for an enforcement of the child support order, you will plead the total amount that the obligor is currently in arrearages. You will ask that the Court confirm this amount when you have your hearing and order that the obligor be responsible for that full amount.

Within the remedies that can be requested, the most popular is that of contempt. That is, you can request that the Court order that the obligor be confined in jail or pay a fine in addition to the remedy of paying you the child support arrearages that he/she owes. You can also request that the Court enter a money judgment against the Respondent or obligor, impose a child support lien against Respondent's property, order withholding from Respondent's paycheck, and/or award your attorney's fees. You and your attorney must be specific in the remedy that you are seeking, because unless it's requested within your motion, then a judge can't award it. So, be sure to ask for what you want.

With respect to attorney's fees, sometimes in family law cases this can be hit or miss. It is generally determined on a case-by-case basis and can also depend upon the Court that your case is in. However, the Texas Family Code carves out a special niche for enforcement of child support cases. That is, Texas Family Code Section 157.167(a) states that if you prove that the Respondent has failed to make his/her child support payments, then the Court shall order the Respondent to pay your attorney fees and any costs associated with the suit. Another caveat is that if the Court finds that the Respondent is in arrearages for $20,000.00 or more in child support, then the Court must award attorney's fees and costs unless the Court finds that Respondent is (1) involuntarily unemployed or is disabled; or (2) lacks the financial resources to pay the attorney's fees and costs.

When a Court orders a person to pay child support, it does so because not only is it required by Texas law, but also because of a moral code to ensure that the children's essential needs are met. So, if you are facing this situation, there is a remedy to make the other parent step up and comply with their obligation and with the Court orders. You just have to take the first step and bring it to the Court's attention.

The orders from your divorce or suit affecting the parent-child relationship have a special child support clause and it states, typically, the amount of child support you are responsible for as well as the dates that each support payment is due. A few months, or even years, later you realize that you have been paying more than the amount stated in your orders. You call your attorney at Guest & Gray, P.C. to determine what you can do, if anything.

If you, the obligor parent, pay the obligee parent a little extra than what you're ordered to, then you need to get in writing that the obligee parent agrees these are "excess payments" to the child support order. The significance of this is outlined in Bolton v. Bolton, where the 1st District Houston Court of Appeals ordered that it depends on what the obligor's intent was at the time the payments were being made--were they excess payments that should be treated as credit for any future payments of child support where the amount of support is increased? The Court placed a lot of emphasis on what was the agreement of the parties. Therefore, get your attorney at Guest & Gray, P.C. to draft a written agreement between you and the obligee parent that you intend the extra payments as a credit so that any confusion between you and the other parent can be avoided. It may also prevent you from having to go back to court and have the judge determine the characterization of the excess payments.

You already have your orders in place from your divorce or suit affecting the parent-child relationship. Now, a petition to modify is filed by the parent who is responsible for paying child support, otherwise known as the obligor parent. You see in their pleadings that they are requesting that the Court lower the amount of child support that they would be responsible for. You're wondering now what you can do so you contact your attorney at Guest & Gray, P.C.

If an obligor parent wants to modify the child support order and argues that they make less now than before, then the Court, in determining whether to modify child support, has to consider all sources of obligor's income, and not just his salary. That is, in Rumscheidt v. Rumscheidt, the 14th District Houston Court of Appeals held that where an obligor parent was receiving substantial financial assistance from his parents and family trust, which allowed him to live in a nice home and have a nice car and his parents paid for a lot of his expenses, then his child support shouldn't be lowered. So, it would seem that one could argue that if the obligor parent is being helped by any family member (or maybe even a friend) when it comes to expenses or debt, then you have an argument to prevent less child support.

Many clients come to Guest & Gray, P.C. in Forney, Texas concerned that if they are ordered to pay child support, does this mean that their social security or inheritance from an estate are subject to the child support order? The answer is plain and simple--appellate courts have held that both social security and inheritance are subject to wage withholding. This is a form of withholding to ensure that the child support payments are made. Just as your employer can be ordered to withhold an amount from your check for child support, so can the social security office. At least, this is what the Beaumont Court of Appeals held in Horton v. Horton.

Furthermore, obligor parents who receive a hefty inheritance, beware. If there is a current suit for modification of child support, according to the 5th District Court of Appeals Dallas in In the Interest of P.C.S. and L.R.S., Minor Children, this inheritance can be included in the calculation of your net resources. However, your attorney does have an argument against this based upon the dissenting opinion which held that inheritance should be viewed as an income producing asset, which would change the calculation rather than just including it in your net resources.

The obligor parent hasn't been paying the monthly child support as they were court ordered, and you want to go after them for it. So, you hire an attorney at Guest & Gray, P.C. in Forney and they file one of these handy motions on your behalf.

In doing so, the attorney will seek jail time, most commonly referred to as contempt, for the obligor parent because in Texas, the legislature doesn't like it when parents don't make their child support payments. However, the obligor parent may no longer be thrown in jail, much to your dismay.

That is, the appellate courts have provided a little incentive for an obligor parent facing one of these motions--just pay the arrearages pled for in the motion before trial, and you won't go to jail. The courts will now look to the pleadings, not what the arrearages would be on the date of the enforcement hearing. That is--even if the obligor parent is still behind when it comes to the hearing date, if he/she is current on what you pled for in the motion, then they can't be jailed at the time of the hearing.

So, contempt is time sensitive according to the 2nd District Fort Worth Court of Appeals in that jail time can only be ordered for what's in the pleadings at the time the motion or amended motion is filed. So, this means you can no longer say, well they haven't paid this much so surely they won't pay these additional months. It has to be actually pled--amend the motion before the hearing to include the additional violations to ensure that contempt is a remedy that can still be sought.

Upon final court orders in a divorce or custody suit, depending upon if you and the other parent have an agreement, the primary or sole conservator (obligee) can be ordered to maintain or secure health insurance for your child and the obligor, as additional child support, is then ordered to pay a certain amount per month for that insurance. Here's the trick, many obligors think that if they're the ones who end up providing insurance for the child, then there is no reason why they should have to pay the monthly additional child support. However, that all depends on the actual language of the previous orders.

In fact, the 14th District Houston Court of Appeals in In the Interest of A.L.S., M.B.S., and F.J.S. ruled just that--unless the previous Court orders specifically say that the obligor's payment of additional child support for insurance premiums is contingent upon the obligee's maintaining or securing insurance for the child, then the obligor parent has to continue paying that additional support, even if they end up being the ones to provide the insurance. Lesson learned--be specific in order language to avoid any confusion in the future.

Picture this scenario. You are in court during a divorce or child custody determination, and you are appointed primary conservator for the child. This means that the other parent is going to be responsible for paying child support. There's just one issue--the other parent is unemployed or makes a lot less than they did before the case started. You may feel as if there is nothing that can be done. However, recent appellate opinions have created a solution to this often present dilemma and your attorney at Guest & Gray will be able to advise you on this.

In particular, this issue goes to when a court can apply the statutory child support guidelines to an obligor parent's earning potential rather than their actual monthly net resources. Parents dealing with dead beat obligor parents, fret no longer. If the child's father/mother has a high earning potential but then decides to quit his/her job or choose a job that pays significantly less, you no longer have to prove they are doing so to avoid child support payments. At least not as far as the Austin Court of Appeals is concerned. That is, in Iliff v. Iliff, the husband was intentionally unemployed--he quit is high paying job while the divorce was pending. Knowing this, the Court still ordered him to pay child support based upon his earning potential--what he was making at his highest point--rather than his actual earnings. However, as with all good news, there is a catch. This case went to the Texas Supreme Court where the justices did a little clarification. The Court agreed with the Austin Court of Appeals but stated it would be based upon a case-by-case determination. Thus, it will be based upon the evidence presented in each case--if the obligor puts on evidence of his wages and earnings, it then becomes the obligee parent's burden to prove that the obligor parent can do better than that, he/she is just choosing not to. Meaning, you have to prove the Court's definition of intent which is "conscious choice to remain unemployed or underemployed." Then, of course, the burden shifts back to the obligor parent to prove that this isn't true, that he/she is doing the best they can.

In the Illiff case, the trial courts are instructed to consider certain motivational factors of the obligor parent--why are they unemployed or underemployed. This brings to light that there are other ways besides money to support a child. These factors include quitting a job and getting a new one to be closer to your child and more involved in the child's life or if there is a job with a better benefits package, it just pays less. So, obligor parents might have a way out to avoid this "earning potential" calculation after all. And finally, another catch, going back to what will the Court consider as being underemployed. According to the Texas Supreme Court, it means that the obligor parent is making "significantly less." And, if it didn't seem grey enough, what is significantly less is left to the imagination.

One final caveat, what if the obligor parent is incarcerated? What does this mean for child support. A Corpus Christi Court of Appeals treated this as intentional unemployment, In fact, that appellate court followed the Texas Supreme Court's opinion and held in In the Matter of the Marriage of Lassman, that the obligor parent's incarceration was intentional unemployment which would allow the trial court to deviate from the statutory guidelines and apply the percentage of support to his earning potential rather than his actual earnings. Therefore, when the obligor parent gets out of jail or prison, there will be arrearages. Seemingly, the appellate courts are going the extra mile to ensure that parents support their children.

The Texas Family Code sets out specific guidelines for courts in calculating child support and what the percentage of the obligor's net resources should be based upon the number of children involved in the suit. The cap on the obligor's net resources is $7500.00 per month. Even though child support is governed by statutory guidelines, there may be certain reasons why courts would a higher amount beyond the standard child support. In fact, the obligee (parent receiving child support payments) can request additional support and present the reasons for such support. The key is, the reasons for such additional support must be a "proven need." Now, we have some guidance on how to present evidence of the "proven needs" to avoid any issues at the hearing, or even after.

The 2nd District Fort Worth Court of Appeals recently held in In the Interest of T.A.W., L.J.W., M.M.W., and J.M.W. that when an obligee parent is trying to prove that the obligor parent should pay more child support than what's mandated by the Texas legislature, then they have to be specific. That is, you can't just go in with an amount and say this is what he/she should pay. You need to make an itemized list of essential expenses for the child or children and make sure that you separate those expenses from the rest of the family. For instance, you may be remarried and have another child. Be sure to only include expenses for the child that's receiving the support. And, although you may want to, don't intermingle any of your expenses either. It will only result in issues down the road. And finally, don't try to double dip. For example, if you're already ordered to receive support for the unreimbursed medical expenses, then don't include prescriptions or things of that nature in the itemized list for additional support.

The Texas Courts of Appeals are going to be very specific now when reviewing the trial court's reasons for deviating from statutory guidelines, so now you and your attorney at Guest & Gray, P.C. have to provide the specific evidence that would support the trial court's findings.

If you are a parent of a child or children who attend private school, upon divorce or splitting up with the other parent, you might be flying solo now on the high tuition. When determining child support, there are statutory guidelines within Texas Family Code Chapter 154 that govern and it depends on how many children you have and the obligor parent's (the parent who has to pay) net resources, with a cap of $7500. And, in awarding child support, there are reasons that courts will go above these guidelines and award additional support to the child. For instance, if the child has a disability, then that would necessitate additional support. Now, as a parent of a child who attends private school, you're thinking "that's great, because my child needs this education, has been going to this school my entire relationship with the other parent, and so that means our child will get more money."

However, because of the recent Dallas Appellate Court opinion in In the Interest of M.A.M., private education is not seen as a need that would require a deviation from the statutory guidelines. Meaning, courts are no longer just going to throw that into the calculation mix. The Courts are nervous about straying from the guidelines because they have to show good reason for doing so. This means that you have to fight for it.

Specifically, the Dallas Court put a higher burden on the parent claiming the necessity in that you have to produce evidence that your child needs or would "especially benefit from" the private school education. That will require work by your attorney at Guest & Gray, P.C. who can do comparisons between private and public school, demonstrate through report cards how well your child is doing, etc. Thus, it can be done, just with a little creativity.

Picture this:

You've been divorced for a year and are dropping your 6 year son, Junior, at your ex's house in Forney at the end of your weekend possession. As soon as you show up at her house she starts bitching about you being 5 minutes late. You immediately chuckle because as you drove up you looked at your phone and noticed you were actually 5 minutes early. In response to her stupidity, you stick your phone display in her face to prove your righteousness and tell her that she'd know how to tell time if she hadn't dropped out of high school to pursue a career in cosmetic sales. Her brow wrinkles, her mouth opens, and in her worst hillbilly dialect she smirks, "I don't even know why I let Junior stay with you. You ain't paid me in 6 months, and you ain't even his real daddy." Confused and angry about what your lying, no-good ex has done to you, you call your attorney at Guest & Gray and ask, "How can I fix this?"

Until recently, our answer would have been discouraging because it has been over 4 years since you became the presumed father of Junior at the time of his birth. But now, thanks to our friends at the Texas Legislature, we would tell you to run, not walk, to our office so we can file your termination petition to get you off the hook from paying your sorry ex child support for Junior (who turns out to be her love child with Randy, the Kaufman County dog catcher).

"But what if I knew she cheated on me with good ol' Randy in the restroom of the Stables Club approximately 9 months before baby Junior discovered America?" No worries, you have until September 1, 2012 in order to file your petition for termination. After that date, the new law requires you to file your petition to terminate within 1 year from when you discovered the facts indicating that Junior was not your kid.

"Does this mean that I don't have to pay my ex the 6 months of back child support I owe her?" No. You're still responsible for all past due child support. But, the judge can't put you in jail for failing to pay your back child support after the termination goes through.

"What if I still want to take Junior to all our favorite places like Home Depot and Twin Peaks after my rights are terminated?" This one is a little trickier. You can ask the court for post-termination access and visitation with Junior (without child support), but the court will grant it only if denial of such contact will significantly impair Junior's physical health or emotional well-being.

Continue reading "Change In Mistaken Paternity Law Helps Texas Fathers" »