Defending Against Child Support Enforcement Suits

If you get behind on your child support payments, the State of Texas or the other parent may sue you to enforce the child support order and ask that you be sent to jail. To defend your freedom and make sure your payments are manageable, you need an experienced child support defense attorney who understands how the process works.

(Related: Collecting Child Support)

Contempt Flow Chart

Enforcement Flowchart

Did You Fail to Make All the Payments Required Under a Valid Court Order?

Enforcement lawsuits are divided into phases. In the first phase, the judge must determine whether there was a valid court order in place at the time of your alleged violations. If there was, then the judge must decide whether you complied with the order or violated the order. If you violated a valid order, then you will have to pay the child support you missed. The judge will put you on a payment plan to get caught up on the missed support.

Do I Have to Make Up *Every* Missed Payment?

Usually, yes. However, there are two ways out. First, you can reach an agreement with the other parent. Sometimes the other parent is willing to reduce the amount of the arrearages. For example, if you owe $60,000 in child support that will be paid out over several years, the other parent may be willing to accept a lower amount as a lump sum.

The judge cannot “forgive” arrearages1Tex. Family Code § 157.263(b-1): In rendering a money judgment under this section, the court may not reduce or modify the amount of child support arrearages but, in confirming the amount of arrearages, may allow a counterclaim or offset as provided by this title. but the judge can give you a credit against arrearages. For example, if you had actual possession of your child for several months, the judge can give you credit for those months. There are other ways to get an offset against arrearages. An experienced attorney will know how to bring the fact that you are entitled to offsets and credits to the judge’s attention.

Could You Have Paid More?

In the next phase, the judge must determine whether you could have followed the order better. For example, if you were ordered to pay $1,000 per month in child support and you paid ZERO, there is a good chance the judge will determine that you could have paid more than zero. If you paid $750 a month and you were behind on every other bill and you simply did not have any more money, the judge may determine that you did your best. If the judge determines that you did your best, you probably will not be guilty of "contempt." If the judge determines that you could have paid more, you will be found guilty of contempt.

What Happens if the Judge Finds You in Contempt of Court?

If the judge decides that you are guilty of contempt (you did not follow a valid order to the very best of your ability), you will be sentenced to some jail time. If the judge believes that there is a good chance you'll follow the order and make your payments going forward, you will probably be put on "probation," or, as we refer to it in the child support system, "suspended commitment." If the judge puts you on suspended commitment (does not send you to jail immediately), then as long as you make your payments in the future, you will not go to jail over these past violations. However, if you go back to missing payments, the judge is likely to revoke your suspended commitment and send you to jail for at least 180 days.

If the judge finds you in contempt and does not believe there is a very good chance that you will follow the order going forward, then you will probably go to jail immediately that very day. The judge can find you guilty of criminal contempt which means that you will go to jail for a set number of days, probably 180 days. Alternatively, the judge can find you guilty of civil contempt, which means that you will go to jail until you pay a set amount of the child support payments that you missed. As soon as you make those payments (or someone on the outside makes them for you), you will be able to get out of jail.

We Defend People Accused of Failing to Pay Child Support

Enforcement cases are highly technical and no one should attempt to defend themselves. There are many procedural rules that must be observed by the State or the other parent who is trying to enforce the child support order. Each rule presents a separate opportunity for defense--if the party who is suing to enforce the child support order fails to satisfy even one rule, that is often sufficient for a complete defense against contempt.

Knowing the legal rules is not enough. You also need to be prepared to make an impressive appearance in court. We make sure you know how to dress, what to say, what to do before coming to court so that the judge will believe that you can do better and that it will NOT require a stint in the county jail to inspire you to do better.

Next Steps

If you are being sued to enforce a child support order, you need an attorney. If you cannot afford one AND the other party has asked that you be put in jail, you can ask the judge to appoint an attorney to defend you. If you do not qualify for a court-appointed attorney, the judge will still give you time to hire the attorney of your choosing to defend you. Either way, you need a lawyer. We're here to help. Give us a call: 972-985-4448.

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