I've Been Sued for Not Paying Child Support, But My Child Has Been Living With Me. Can I Argue This In My Defense?

Yes you can. If the order is for your child to live with the other party, but your child has lived with you partially, you may be entitled to an offset of the child support obligation. If the child has lived with you full time, you may be entitled to a complete discharge.

If the managing conservator has voluntarily relinquished to the obligor the actual care, control and possession of the child for a time period in excess of court-ordered possession or access, the obligor may affirmatively plead and prove that actual support, if any which was supplied to the child. The court may treat this proof as a defense and offset, in whole or in part, to a motion for contempt for failure of the obligor to make periodic support payments according to the terms of the order (157.008).

Sean Y. Palmer is a Texas Family Law and Divorce Attorney who practices in Galveston and Houston Texas.  

I Have and Family Law Order I Want to Enforce. How Do I Start?

You are angry and you want justice. You went through all the effort of getting an order from the court and now the other side is not following it. What do you do?

The process you want is called Enforcement and it is one of the most tricky areas of family law. The reason is, is that the process is often “quasi-criminal” in nature, and therefore the other side gets many, many protections. And because double jeopardy often applies (the legal principle that a person cannot be tried twice on the same crime), then if you screw the enforcement up, you will lose any right to try to enforce again.

A person found to be in contempt of court is subject to a find of up to $500.00 and jail time of not more than six months for each violation. Contempt is considered to be criminal in nature and the rules require specific and careful pleading, evidence, and orders. If you are seeking the enforcement of your order, you should only hire an attorney experienced in this area of law, and certainly should not try to do this on your own (pro se).

The pleadings , which should be filed in the court of continuing, exclusive jurisdiction, (Family Code 157.001(d)), must give notice of the provisions of the order sought to be enforced and must state the amount owed under the terms of the order, the amount paid and the amount of the arrearage (157.002). Attaching the pay record to the motion is evidence of the facts asserted in the payment record and is admissible to show whether payments were made (157.162).

It is important to remember that a finding of contempt by the court will require a detailed commitment order which includes the requirements in 157.166. The language in this statute is mandatory.

If I’ve said it once, I’ve said it a million times- don’t go it alone. You need to get the help of an experienced family lawyer. If you can’t afford an attorney and are willing to go through more red tape you can request assistance from a government agency. Agency attorneys are often maligned because they are government. And while it is true that you will have to wait a much longer time and must sign forms in triplicate and jump through many hoops, the lawyers themselves are often very experienced and experts in this area of law.

If you are seeking enforcement of child support, you can contact your local Attorney General Office. If you are in Texas: (www.texasattorneygeneral.gov)

Many counties with large populations have a county agency called a Domestic Relations Office. Like the OAG, this county agency will also help enforce child support, but it they also help enforce orders on child visitation (called possession/access). These agencies are often more user friendly because they are smaller. If you are in Harris County, Texas: (www.dro.harriscountytx.gov) .

Sean Y. Palmer has been practicing law exclusively in the area of Family Law and Divorce for eighteen years. He lives in Kemah Texas with his Daughter and a Fish named Harvey.

Top Six Warning Signs Your Spouse May Be Cheating On You... Through Taxes!

When one spouse decides to divorce in their heart and mind, they often keep their plans secret so they can prepare to end the marriage to their best financial advantage. Unfortunately, this preparation is often at the expense of the other spouse who is unprepared for the coming storm of divorce.

A marriage joins two people together as one. This is true not only emotionally, but financially and legally as well. In a marriage union each spouse has a "fiduciary duty" to the other- a promise and obligation to look out for the other person's financial situation and not cheat them through the special trust relationship of marriage.

But what happens when one spouse has begun to view themselves as a separate person. When marriages begin to fall apart, obviously emotions run high. Sometimes one spouse is in denial and refuses to acknowledge the signs that should be obvious. This is particularly unfortunate because it is precisely at this time- when your spouse no longer feels they have to keep their fiduciary duty to you- that you need to put emotions aside and keep your wits about you and prepare for your own, separate financial future.

One of the last things thought about- even among many divorce lawyers is the tax implications of your divorce. Most married persons file joint income tax returns automatically, even when only one may generate all of the income. But when marital disruption gets underway the returns are often late or not filed at all. Bad feelings and suspicion may arise as one spouse tries to box the other into a tax corner.

There also could be underwithholdings, omissions of income, exaggerations of deductions, interception of refunds and destruction of tax notices.

If you are facing the prospect of a divorce, you need to be aware of the early warning signs that Here are the top warning signs

1. YOUR SPOUSE REFUSES TO SIGN THE TAX RETURN

Not signing the joint return can be your first signal that your spouse is preparing for a divorce. If your spouse delays or gives reasons for not signing your joint return, you should pay attention. Your spouse may be thinking about a financial future that does not include you.

2. YOUR SPOUSE INTENTIONALLY UNDER-WITHHOLDS

Your spouse may be aware of the co-liability that attached to a joint tax return. The devious spouse will want to take as much cash as they can and make you jointly liable for the increased tax bill - while he/she squirrelled away the cash. There is no easy way to discover this however. Your spouse may change their W-4 Employee's Withholding Allowance Certificate to take less tax deduction without your consent and the employer is not required to notify the employee's spouse. The innocent should review their spouse's pay stubs. If your spouse refuses to show you or delays or makes excuses- then you should be very suspicious.

3. YOUR SPOUSE SKIPS ESTIMATED PREPAYMENTS

Many couples have sources of income that are not immediately taxable such as self employment income, rental property income, and the like. The innocent spouse needs to be aware that prepayment of estimated taxes is the law. This is generally done quarterly with IRS FORM 1040-ES Estimate Tax for Individuals. If your spouse has started to file forms that are grossly inadequate to the normal, filed later or not at all then your spouse may be preparing for a divorce.

4. NOT REPORTING SUBSTANTIAL INCOME

By signing the joint return, the innocent spouse is confirming all that it contains and making him/her equally liable for any tax fraud it entails. If the income reported is less than 25% of what was actually earned, then the IRS considers this a "substantial omission" and triggers a special rule (IRS code 6501(e)) that allows the IRS to examine all returns for the prior six years. If a substantial omission is discovered, then a 75% civil fraud penalty applies.

5. YOUR SPOUSE INTERCEPTS THE TAX REFUNDS

Because most returns direct the IRS to direct deposit funds into an account electronically, it is ridiculously easy for a devious spouse to put in the account number for a separately held account that the innocent spouse does not know about. If the devious spouse is especially cunning, they will deposit into the joint account a small portion of the tax refund because the innocent spouse often will not pay attention to, or will have forgotten the amount of the refund from the return they signed. The best way to check against this for the innocent spouse to keep a copy of the return and cross reference the joint account when the refund is deposited.


6. YOUR SPOUSE DESTROYS TAX NOTICES.

If your spouse insists or makes excuses why her or she should be the one to collect the mail every day, you should be suspicious. The IRS will send notice errors or delinquency and if ignored, the IRS may begin to levy money from the innocent spouse's paycheck or financial accounts. If your spouse destroyed all the letters and communications including the Notice of Levy, then the first time they find out about it is when their paycheck or separate account is "suddenly" short.

In each of these warning signs, there may be reasonable explanations and separate and alone, they do not necessarily justify taking any kind of legal action. But taken together, and along with any other factors you may see in your marriage they may indicate you need to begin to take steps to protect yourself from getting in trouble with the IRS and/or being denied a fair division of the marital estate during a divorce.

If have strong suspicions you should check with a skilled divorce attorney who understands the tax implications of divorce and understand your legal and financial rights.

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Sean Y. Palmer is an Texas Attorney who has practiced exclusively in the area of Family Law for the the better part of 17 years. He lives in Kemah, Texas with his daughter, and a fish named Harvey.

Are there any Statute of Limitations on Child Support Enforcement?

Although there aren't "statute of limitations" in the traditional sense, there are however, time limits that must be adhered to when enforcing child support.

In 2009, the legislature extended the time to file an enforcement action. Now, a motion for contempt concerning child support must be filed within two years after (1) the child becomes an adult or (2) the date on which the child support obligation terminates pursuant to the decree of order by operation of law. (157.005(a)) (increased from 6 months).

Note the distinction concerning a statute of limitations concerning contempt and other remedies. If you are seeking a money judgment only (not contempt) you have ten years to file from the earlier of (1) the date the child turned 18, or (2) the date the child support obligation ends. (157.005(b))

Also, while not technically a statute of limitations, you should be aware that the statutes have certain limitations on the length of confinement. Texas Government Code 21.002(h) provides that: 1) in criminal contempt, the maximum penalty is $500 and 18 months confinement, and 2) in civil contempt (coercive), the maximum confinement is the lesser of 18 months or the date of compliance.

To find out more about Child Support Enforcement or other family law matters, please visit www.thepalmerlawfirm.com

Contempt is Quasi-Criminal

Contempt is often though of as a civil remedy, but it is actually 

treated like criminal one because it can involve putting a person in jail for defying a court's order.  Therefore legal proceedings for contempt of child support or possession and access orders are styled as "quasi-criminal". 

Because of this, enhanced attention to due process is paid by the courts.  Many of the rights of the accused that are usual seen only in criminal court are often seen in child related enforcement proceedings.  This includes the right against self-incrimination and the right to appointed counsel. (TFC 157.163).  In addition, a lawyer practicing this kind of law has to be technically competent because there is very little "fudge factor" as with general domestic law practice.  Therefore those kinds of "loose" lawyers who usually practice by personality or the seat of their pants would do well to get a more technical minded co-counsel or better yet, steer clear of this area of law altogether.  Careful drafting of pleadings and orders is a MUST because one small error can be devastating to your case.  And unlike divorce and other family law practice, there is no opportunity for a "re-do" if the lawyer screws up.  Double jepordy applies here.

Enforcing Child Support Part 1- Introduction

Today, we begin what will be a multi-part exploration of the law in Texas on child support enforcement.  With divorce statistics on the rise (albeit not as steep of a climb as in the past), and with more incidents of people have children out of wedlock, the topic of to what degree children continue to receive financial support is never more timely.  Unpaid child support due nationally totals $37.9 billion; with only 62.3% of that amount being paid on time.


The factors that impact whether child support is paid in a timely way are both familiar and surprising at the same time.   One factor impacting child support collection is income and education level.  According to national statistics, parents with a college degree were more likely to pay full payment of child support obligations than those without a bachelor's degree or higher.  Considering that in Texas, support is calculated at a set percentage based on net resources with a minimum and maximum income caps, this factor is somewhat surprising.  Also as the new generation of parents are one of the most over educated and under employed in history, the presence of a degree increases the probability of, but does not necessarily equate to higher income.

Another more surprising factor is the impact that ordered custody arrangements have on the payment of child support.  Statistics show that parents with joint custody pay child support on time more than parents who have sole managing conservatorship orders.  This supports what many people who work in family law have observed - parents are more likely to pay their child support when they have frequent contact with their children.  This is definitely something to think about when custody orders are initially put in place by individuals or by government agencies like the Attorney General's Office.  Child Support Orders are often put in place by default and basically, the custodial parent can dictate whatever visitation schedule they want in that situation.  It may be short-sighted in those situations to insist on an unreasonably restrictive visitation schedule that will discourage the non-custodial parent from exercising their visitation.  Aside from the presumption that in most cases (though not all) it is in the best interest of the children to have as much contact with both parents as possible, a custody order that fairly encourages non-custodial visits appears to also increase the odds of the non-custodial parent ultimately paying their child support in a timely manner.    

Source: Custodial Mothers and Fathers and Their Child Support  



   

What Is Contempt?

Without contempt, courts are like a tiger without teeth.

Without the ability to enforce it's orders, the Courts are like a tiger without teeth.  Therefore, courts have the power to hold individuals in contempt.  Although generally considered a non-criminal remedy (a civil remedy) but because a person could wind up in jail, it is basically criminal in nature and should be treated with that level of seriousness.  That is why many of the rights that we would normally think of being attached to a criminal proceeding (reading of rights, right to counsel, etc) may come into play.

Also, attorneys who attempt to get contempt for their clients must have specialized skill because pleadings and orders must be drafted with particular care.  An alleged contemptor may get off on a technicality because of sloppy drafting and because double jeopardy may attach, the careless lawyer may not have the opportunity to fix their error.

Contempt may be punished by a fine of not more tha $500 or confinement in the county jail for up to 6 months, or both.  That is for each violation (which in most family court proceedings there are usually multiple violations of support payments or instances of denied visitation.  In addition, contemptors can be placed on probation and under community supervision for a period not to exceed ten years. (Texas Family Code 157.211 and 157.212).

Contempt comes in two flavors.  Direct contempt is something that happened in front of the judge.  When Judge Judy gets pissed off at the sophomoric behavior of some idiot who can't get clue- that is direct contempt.   Direct contempt ensures that the court and the officers in it are treated with the respect and deference necessary for justice to happen. The other kind of contempt is called constructive contempt.  This is when, outside of court, a person does or fails to do something the court ordered him to do.  Essentially, the contemptor may be smiling to the judge's face, but then thumbing his nose at the court as soon as his back is towards the bench.  Constructive or indirect contempt is much more common and includes the engaging in conduct prohibited by the court such as violating a restraining order or failing to do something the court orders, such as paying child support.  Indirect contempt usually (but not always) requires a written order signed by the judge.

Mumbo-jumbo to know:

• direct contempt
• indirect contempt
• contemptor