When child support is not paid as ordered, a child is deprived of the financial resources and medical care that the child is entitled to receive and the other parent is unjustly forced to cut corners in the child's care or incur debt to make up for missed payments. Texas takes child support obligations seriously and if you are not receiving the support you are entitled to receive, we can help you collect it.
Child support collection and enforcement suits are highly technical and the smallest errors can be fatal to an otherwise just claim for unpaid support: It is important that you engage an attorney who is experienced in all aspects of child support collection, enforcement, and defense.
Types of Child Support
Child support appears in court orders in several forms. Not all forms are ordered in every case and some cases have additional forms of child support. Here are the four most common forms of child support:
- Regular Child Support: These are the regular child support payments that one parent pays to the other on a regular basis, either monthly or out of each paycheck.
- Health Insurance Premiums: The Texas Family Code requires that a parent who pays regular child support must also pay the cost of insurance premiums for the children (medical and dental).1Tex. Family Code § 154.181.
- Reimbursement for Out-of-Pocket Medical Expenses: Most medical support orders require that each parent pay 50% of the child's medical expenses which are not reimbursed by health insurance.
- Child's Activities: Some court orders require the parents to divide the cost of the child's school and extracurricular activities. Most of those orders are not enforceable, but some are.
Collecting Regular Child Support
An order for regular child support requires a parent to pay a fixed amount of child support each month or each pay period. To be enforceable, the order must be in writing and signed by the judge. If you do not have a written court order, read more about how to get one.
If you do have a written order for regular child support, it is enforceable if:
- It is in writing;
- Signed by the judge;
- Requires the other parent to make a regular payment of a fixed dollar amount;
- Specifies the date on which the first payment is due; and
- States the dates on which subsequent payments are due.
What If My Order Is NOT Enforceable?
There are many flaws in an order that can make it unenforceable. The worst is when the child support order is either missing altogether or so vague that no one can tell how much the parent was supposed to pay each month. Every once in a while, we see a DIY court order that says something like, “Father will pay his fair share of the child’s needs each month.” An order this vague will be very challenging to enforce in the sense of collecting unpaid support and will be impossible to enforce in the sense of finding the other parent in contempt of court.
Even if your order is not enforceable for past child support, we can usually “clarify” the order so that it’s enforceable in the future (depending on the age of the child).
To collect regular child support that is not being paid even though there is an enforceable order in place, you have to file a lawsuit against the non-paying parent. In the lawsuit, you have to provide the following information2Tex. Family Code § 157.002.:
- The exact language from the order that you are trying to enforce. Some attorneys attach the entire order to the enforcement motion and some courts have decided that doing so is sufficient. My opinion is that the motion should extract exactly the paragraphs that are being enforced so that the non-paying parent cannot use "lack of notice" as an effective defense.
- State the manner of the other parent's non-compliance. In child support enforcement cases, this means specifying the date on which each missed or partially missed payment was due, the date and amount of any payments, and the total amount owed (the arrearage).
- A description of what you want the judge to do about it (the relief requested) and whether you want the judge to put the non-paying parent in jail for failing to pay.
If the judge agrees that payments have been missed, the judge will add up all the missed payments, render a judgment for that amount, and put the non-paying parent on a payment plan.3Tex. Family Code § 157.264(b). If the arrearage is greater than $500, the Attorney General's office will notify the IRS (and other agencies) so that tax refunds owed to the non-paying parent are intercepted as payments against the arrearage.
If the judge agrees that the non-paying parent could have complied with the order, the judge may find the non-paying parent in contempt of court and order jail time, fines, and add your attorney's fees to the total amount owed.
How Long Will the Other Parent Get to Payoff the Arrearage?
The Family Code provides the judge with quite a bit of discretion. First, judges are instructed to make sure the arrearage is paid off within two years4Tex. Family Code § 158.003(b): The additional amount to be withheld for arrearages shall be an amount sufficient to discharge those arrearages in not more than two years or an additional 20 percent added to the amount of the current monthly support order, whichever amount will result in the arrearages being discharged in the least amount of time. but then told that the arrearage payment must be reasonable5Tex. Family Code § 158.005: In rendering a cumulative judgment for arrearages, the court shall order that a reasonable amount of income be withheld from the disposable earnings of the obligor to be applied toward the satisfaction of the judgment. and further given the discretion to create a payoff schedule that is longer than two years if that’s what it takes to avoid an unnecessary hardship on the non-paying parent’s family.6Tex. Family Code § 158.007: If the court or the Title IV-D agency finds that the schedule for discharging arrearages would cause the obligor, the obligor’s family, or children for whom support is due from the obligor to suffer unreasonable hardship, the court or agency may extend the payment period for a reasonable length of time.
Collecting Health Insurance Premiums
Orders requiring the other parent to cover the cost of medical and dental insurance come in two forms. If the other parent has good insurance available at a reasonable cost7Under the Texas Family Code, a reasonable cost for medical insurance is 9% of the obligor's gross income, Tex. Family Code § 154.181(e), and a reasonable cost for dental insurance is 1.5% of the obligor's gross income, Tex. Family Code § 154.1815(a)., then the order may require that parent to purchase health and dental insurance.
Other Parent Required to Purchase Insurance
If the other parent was required to purchase health insurance and has not done so, the first enforcement mechanism is to require that parent to pay 100% of your child's out-of-pocket medical expenses. The other form of enforcement is an order requiring the parent to purchase health insurance by a certain date or face going to jail. If the judge has signed or will sign a medical support order, then one way to enforce this provision is to provide a copy of that order to the other parent's employer. Doing so requires the employer to enroll your child under their health insurance plan.8Tex. Family Code § 154.184.
Other Parent to Reimburse You for Cost of Insurance
In its second form, an order requiring the other parent to cover the cost of medical and dental insurance will require the other parent to reimburse you for the reasonable cost9"Reasonable Cost" for medical insurance is defined as 9% of the obligor's gross income, Tex. Family Code § 154.181(e) and 1.5% for dental insurance, Tex. Family Code § 154.1815. you must pay in providing the child's insurance.
This means that if you have insurance through your employer or other private insurance, the other parent will have to pay you back for the cost of the insurance that is allocated to the children covered by your court order. That affects how much you are entitled to receive in two ways. First, if the other parent does not make much money, they may not be required to pay for the entire cost of insuring the children. For example, if the cost of insuring the children is $350 per month and the other parent only earns $1,500 per month, that parent will only have to pay 9% of their gross income toward insurance premiums, or $135 per month.
Allocating Costs Among Children and Adults
The other way this allocation affects how much you receive is that the cost of the insurance premiums is first allocated as "for the children" and "other" as follows. Let's say you get a document from your HR department that shows the following costs for medical insurance:
|PLAN||Employee Only||Employee Plus Spouse||Employee Plus Children||Employee Plus Family|
Assume further that:
- You have remarried;
- There are two children covered by your court order ("children before the court");
- You have had one child with your new spouse; and
- You are covering yourself, your new spouse, and all three children on your Plan A health insurance.
The first thing you do is figure out the amount just for insuring all the children. In this case, it would be:
Plan A Employee Plus Family . . . . . . . . . . $950.00 LESS: Employee Plus Spouse. . . . . . . . . . . -$350.00 -------- Cost to insure the children . . . . . . . . . . $600.00
Once you have the cost of insuring the children, you prorate that for all the children who are covered by the plan, in this hypothetical case there are three children: One who is not part of the lawsuit and two that are.
Cost to insure the children . . . . . . . . . . $600.00 Divided by total number of children . . . . . . / 3.00 ------- Cost to insure each child . . . . . . . . . . . $200.00 Time number of children before the court . . . x 2.00 ------- Cost of insuring the children before the court $400.00
So, in this case, the most the other parent would be required to pay each month is $400.00, assuming that the other parent had a gross income of $2,667 per month or more.
Once you know how much the other parent was ordered to pay you for health insurance premiums, you multiply that by the number of missed reimbursement payments and ask the judge to confirm that you are owed that amount. Once the judge confirms the amount owed to you ("confirms an arrearage"), the judge will put the other parent on a payment plan to get caught up. If the other parent refuses to make payments on the judgment as ordered, you can ask the judge to hold the other parent in contempt, which can include jail time.
Collecting Reimbursement for Out-of-Pocket Medical Expenses
Collecting reimbursement for out-of-pocket medical expenses is a two-step process and many attorneys get this wrong. Collecting out-of-pocket medical expenses is a little more complicated because the other parent was not ordered to pay a set amount on specific dates, e.g. "$500 a month beginning Jul 1, 20XX and on the first day of each month thereafter." Instead, they were ordered to pay some percentage, say 50%, of whatever expenses fall into the category of "the reasonable and necessary health care expenses, including vision and dental expenses, of the child that are not reimbursed by health or dental insurance or are not otherwise covered by the amount of cash medical support ordered" by the court.
There can be disputes about whether an expense falls into this category or how much of an expense falls into this category. For those reasons, first, you must ask the judge to determine the total amount that you are owed ("confirm an arrearage") and establish a payment plan to cover it. Then, if the other parent makes the payments against the arrearage as ordered, no further enforcement action on those named expenses is necessary or possible. However, if the other parent does NOT make payments against the arrearage as ordered, you now have violations of a court order that is specific enough for the judge to enforce by contempt, meaning that the judge can put the other parent in jail, make them pay a fine, and pay your attorney's fees.
Notifying the Other Parent
After the petition to enforce child support is filed, you must get it set for a hearing date, obtain citation and notice from the district clerk, and serve the non-paying parent with citation, notice, and a copy of the petition.
At the first hearing, be prepared for the other parent to claim that they are indigent and cannot afford an attorney or that they need more time to hire an attorney. If the judge agrees that the other parent cannot afford an attorney AND your petition for enforcement requests jail time, then the judge will appoint an attorney to represent the other parent and set a new date for your trial. This will impose a significant delay. There is not much you can do about it other than being prepared for it.
Additional Enforcement Mechanisms
- Suspend or refuse to renew a motor vehicle license.10Tex. Family Code § 232.0022.
- Suspend the obligor's driver's license and professional licenses.11Tex. Family Code § 232.003.
- File lien on all nonexempt real and personal property of the obligor that is located or recorded in the state12Tex. Family Code § 157.313. including motor vehicles, real property, financial accounts, and insurance policies.
We Help Parents Collect Past-Due Child Support
Child support enforcement is complicated and very technical. If your lawsuit is not drafted perfectly, even though the non-paying parent clearly owes money and could have easily paid it, a skilled attorney defending that parent will be able to defeat your lawsuit and protect the non-paying parent from facing any jail time, which is the ultimate enforcement tool. You cannot afford to get this wrong, which means that enforcing child support is not something you should try to do yourself or entrust to an attorney who is not highly knowledgeable in the area of enforcement.
Children have a right to be financially supported by both parents. If you have been awarded monthly support payments that are not being paid or if you are not receiving medical reimbursement for out-of-pocket medical expenses, then you should start the collection process now.
If you are not receiving all the child support you were awarded, you need an attorney. We're here to help. Give us a call: 972-985-4448.