In Texas divorces with children, child support is almost always awarded. Along with the support comes an income withholding order (IWO) to garnish child support from the paying parent’s paycheck. The paying parent, the obligor, will have payments deducted and paid through the Attorney General or a domestic relations office. The income withholding order is often a good deal. It helps ensure child support goes to the receiving parent, the obligee, and avoids the obligor having to prove payments went to the obligee. There is a hidden trap when obligors are least capable of freeing themselves from a child support enforcement. This post could potentially save you thousands of dollars.
Problems with income withholding orders in Texas divorces with children
The trap is set where there is a difference between the date your child support obligation began (often the first of the month following the date of your divorce) and the date your child support withholding began. Under the Texas Family Code, you owe child support beginning on the date the obligation begins even if the wage withholding does not begin until some date in the future. So you can easily fall weeks, or more, behind on your child support by relying only on the IWO.
For example, if your child support begins on October 1 but your IWO begins withholding on November 1 then you still owe the child support for the month of October; but your employer will not go back and withhold for October. The Attorney General will record payments received from the IWO and in most cases will not pursue enforcement on the shortage in the child support. If payments continue as normal through the end of the child support obligation then the obligor will often just see the withholdings continue until satisfying the support obligation. The shortage may carry forward for years. But the trap exists.
Underpayment of child support after a Texas divorce with children or custody case
The reason why you can carry a shortage in child support like this is due to the Texas Family Code’s enforcement procedures. The Texas Family Code gives the obligor a thirty day grace period to pay child support before an enforcement hearing. That means even if you are a month behind due to the delay in wage withholding beginning the AG or the obligee would waste their time and money filing for enforcement against the obligor because the obligor will get current by the end of the month only to become late again on the first of the next month. Let’s look at an example of that confusing explanation:
Your divorce decree establishes child support on June 1, 2014.
Your employer starts withholding child support on July 1, 2014 so you still owe child support for June 2014.
On July 1 the AG or the obligee could file to enforce the June 2014 child support but a judge is unlikely to do more than order the payment of child support because the obligor’s non-payment was due to the delay in processing the IWO rather than an intentional act to avoid payment.
The AG or obligee could file on July 1 for the June 1 and July 1 payments since the child support is due on the 1st of each month. However, the court cannot set the enforcement hearing until August 1 because the Texas Family Code gives the obligor thirty days to pay the July 2014 child support. That July child support will be paid in full by the end of the month through the IWO so that just leaves that pesky June payment which, again, the family court judge is unlikely to use as grounds for a contempt order. So the filing AG or obligor is wasting resources by filing for enforcement. This same line of events carries forward each month.
What happens if child support payments stop after a Texas divorce with kids
So things sound good while the payments are flowing. But the trap triggers when the payments stop. That happens when the obligor loses his or her job and no more payments are coming to the AG. That means that expectation that child support will be caught up at the end of the month goes away and an enforcement action by the AG or obligee is likely. That enforcement will attack the obligor for both the very first month’s shortage plus the current month. Plus attorney fees and other sanctions. That can be costly at a time when the obligor has no income to pay a double child support month. Let’s go back and look at how this plays out from the scenario above.
The obligor has been paying support through the IWO but loses his job at the end of October 2014.
The obligee files for enforcement on November 1 and sets the hearing for December 1. The enforcement demands payment of that June 2014 child support payment and November 2014. The obligor likely will have to pay attorney fees and court costs and may even go to jail. The obligor has to pay the June 2014 and November 2014 payments in November, although he does not have income. Even unemployment benefits take time.
Hire a Texas divorce attorney to resolve child support problems
Now in this case the obligor could–and should–hire an attorney to defend the enforcement on the grounds that he no longer has employment but that’s more money the obligor doesn’t have and ultimately he still has to pay the child support. But at least it keeps him out of jail (maybe). The obligor just lost his job. He probably doesn’t have the money to hire the attorney or pay the child support. Even a skilled family law attorney may not be able to convince the judge to cut the obligor a break.
The situation would be less problematic if the only arrearage was the time without a job or unemployment benefits; but the obligor has quietly allowed that trap to lie in wait until the least opportune time. In that situation there is only so much the obligor can do, based upon financial resources the obligor has. There may not be many options beyond persuasive advocacy to the judge.
What the obligor should do is disarm the trap before it has a chance to do damage. An obligor should obtain the payment record from the AG to see what child support went unpaid before the IWO. Then pay that amount directly to the AG or domestic relations office to catch up the support obligation.
You may not relish the idea of paying more child support in any given month. It is better to make extra payments while you have income than wait until you don’t have income for it. It’s like buying an insurance policy for loss of employment but you aren’t paying premiums to an insurer. It’s worth the money to pay that shortfall now.