A common mistake child support obligors make is paying child support payments directly to the obligee-parent rather than to the Texas Attorney General’s State Disbursement Unit (SDU). This mistake can be costly for the obligor even if the obligor believes he or she can pay less by making child support payments directly to the other parent.
Today’s post will discuss: why child support payments must go to the SDU; how obligors end up not making payments directly to the SDU; the financial implications of no
t paying child support directly to the SDU; and what to do if you have been paying child support directly to the obligee-parent. This information may be helpful for obligors paying child support and obligees trying to obtain child support payments. If you have problems collecting child support ordered by a Texas court then you should talk to a Dallas or Fort Worth, Texas divorce lawyer right away.
Why child support payments must go directly through the State Disbursement Unit in Texas
Under the Texas Family Code, all ordered child support payments must go through the Texas SDU. That means in a Texas divorce the decree must include language that support payments go directly to the SDU. An order for wage withholding for the child support is also obligatory. The judge will sign a withholding order along with the divorce decree. It is common to include language that payments paid to the obligee is a gift and not support. The Texas Family Code does not require this language.
Reasons why the Texas Family Code requires payments to the SDU
There are several reasons why the Texas Family Code requires payments to go directly to the State Disbursement Unit rather than directly to the obligee. First, the Texas legislature has expressed that it is the policy of the state to enforce child support orders to ensure the children of the state are cared for. That is why the legislature empowered the Attorney General to collect and distribute child support as well as enforce child support orders.
Frequently, children who lack the support of both parents receive benefits from state welfare programs, which means the support of the children shifts from the parents to the state. The legislature would rather see the parents provide support first.
Additionally, the SDU process ensures that payment of child support occurs efficiently through wage withholding orders that allow the SDU to collect support payments directly from the employer without having to deal with the obligor to get payment.
By having a third party collect child support payments, it also takes away the ability of the obligor to use the child support payments as negotiation leverage against the obligee-parent for whatever purpose the obligor may want to negotiate with (or abuse) the obligee.
The SDU process also creates a clear paper trail of what payments were made and when they were made, which protects the obligor from claims that support payments were not made or were not made on time. Even in situations where a wage withholding order is not in place or not available (such as a self-employed obligor), payments can still go to the SDU for recordkeeping and distribution.
How obligors fail to make payments to the SDU
The most common way obligors fail to make payments to the SDU is not understanding the terms of the divorce decree and voluntarily start making payments directly to the obligee. The obligor may never have read the decree close enough to understand that process. The obligee may not have understood the SDU process and convinced the obligor to make direct payments. This is often the case when the obligor did not have an attorney during the divorce.
Obligor tries to do the right thing and make payments directly to the obligee rather than the obligee. Then the obligee never submits the wage withholding order to the employer and the SDU never sees any payments.
Direct payment problems in Dallas and Fort Worth
Obligors also commonly make direct payments to the obligee instead of the SDU when they do not have an employer to withhold wages. That may hold true if the obligor is self-employed, retired, an independent contractor, or unemployed. The obligor may make payments to the obligee although in each of these situations the obligor should still be submitting the child support payments to the SDU.
In rare cases, the obligor will ignore sending payments to the SDU and send payments directly to the obligee to try to maintain control over the child support money, such as by threatening to stop sending more payments if he or she doesn’t like the way the money is being spent. This is a terrible idea but it happens on occasion.
The financial costs of sending payments directly to the obligee
Regardless of the reason why the obligor is not sending payments to the SDU, the obligor can find himself or herself in some hot water because the Attorney General will show no payments have been made against the child support obligation, which will encourage the Office of the Attorney General (OAG) to come collect against you. The good news is that you may be able to obtain credit for support payments you have made but the bad news is that it may be an expensive and frustrating process to obtain credit for your support payments.
If payments go directly to the obligee and the relationship between the parents is positive, the OAG may never discover the obligation. If the relationship sours, the obligee may file to enforce the obligation or set up an account with the SDU.
That will put the OAG on notice that the obligation was not paid through the SDU. The easiest way to obtain credit for direct payments is for the obligee to admit receipt of payments.
That almost always ends the issue. The OAG will credit your account with the prior payments and put the wage withholding order in effect. If the obligee denies payments, the obligor can submit an affidavit testifying to payments and showing records. If you made payments in cash then it is harder to prove payments. Or if the OAG does not accept the evidence it may file a motion to enforce the support obligation.
Even if you win against the OAG it is time consuming, frustrating and will no doubt expensive to hire counsel. The same results can occur if the obligee files a motion to enforce against you.
Direct payments vs. gifts
The obligee may use the language that direct payments are gifts and do not count against the support obligation. The language in the decree deals with situations where you give the obligee extra money on top of child support.
It is not *really* meant to apply to the amount that matches the child support obligation; but aggressive attorneys sometimes assert that is the case. The standard language does not make this distinction, so it is sometimes an effective argument. It is an effective argument if the obligor allows the obligee to obtain a default judgment. That could result in you having to pay child support twice, plus interest.
Even if you win, it may be an unnecessary expense to reach victory.
What to do if you have been making direct payments to the obligee in Texas
Hopefully if you have been making direct payments to the obligee-parent you realize this is not the correct path. You need to set up your payments through the SDU to start getting credit for your payments. However, before you give the OAG reason to believe you missed payments you need to show you made payments. If the relationship with the obligee is positive then the obligee may be helpful in completing this task. Before contacting the SDU, you should speak with a divorce attorney.