What do you do when you are the respondent in a Texas enforcement action relating to past-due child support?
- What is an Enforcement Action?
If you have not been paying child support even though a court order requires you to, your co-parent might choose to file a Motion for Enforcement. An enforcement action is filed when one co-parent (the movant) alleges in a motion for enforcement that the other parent (the respondent) has violated the existing court order by failing to pay child support as ordered in the existing final order.
The movant will file their motion in the court that has continuing and exclusive jurisdiction over the case — that is, the court that made the existing final order. The court order describes the amount of child support that is due each month, on what day it is due, and how it is to be paid. The movant will have to serve you with the motion so that you become aware of the violations that they are alleging. It is important to note that while your co-parent can file a Motion for Enforcement for child support, so can the Office of the Attorney General, other Texas agencies, a domestic relations office, a private entity that has contracted with the county, or even a “friend of the court.” The movant will personally serve you with the Motion for Enforcement so that you become aware of the allegations of failure to pay child support which they are alleging. The first thing you should do after being served is calendar the date of the hearing and make sure that you show up for the hearing. If it is possible, speak with an attorney before the hearing and then you can proceed with filing an Answer that best protects you (as discussed below).
The Motion for Enforcement must adhere to several specific technical rules; otherwise, the court will find that the motion is deficient. For example, the motion must include the following things: (1) the portions of the child support order that were allegedly violated; and (2) the date each missed payment was due, the amount that was due, any amount that was actually paid, and the date the payment was made.
- Contempt and Other Relief
Why is this level of specificity required in the motion? The reason is that Motions for Enforcement can request that the court hold the violating party in contempt for violating the court’s order on child support. There are two types of contempt: civil contempt and criminal contempt. For civil contempt, the motion can ask the court to confine the violator to county jail and require them to pay a fine until they comply with the court’s order. For criminal contempt, the motion can ask the court to (1) incarcerate the violator in county jail for up to six months for each act of contempt and (2) order the violator to pay a fine of up to $500 for each act of contempt. This means that for each and every time your co-parent alleges that you violated the order and failed to pay the required amount of child support, you could be punished.
It is important to remember that the movant can also request other relief in addition to contempt. A few examples include the following: the motion can ask the court to suspend the violator’s commitment to jail and place them instead on community supervision. The motion can ask the court to confirm the total amount of child support arrearages and award the movant cumulative money judgments. The motion can ask the court to issue a wage-withholding order for current child support and child support arrearages. The motion can ask the court to use a child support qualified domestic relations order for current child support and child support arrearages. The motion can ask the court to order the violator to execute a bond to secure future payment of child support if the violator is not subject to a wage-withholding order. This payment of a bond ensures that the violator does not get their money back until past-due or future child support is paid. The motion can also ask the court to award reasonable attorney’s fees and all court costs — meaning that you would be responsible for any costs your co-parent incurred in hiring an attorney, drafting the motion, filing it, appearing for a hearing, etc.
All of this possible relief that could be awarded to your co-parent makes it imperative that you defend yourself against the allegations in the Motion for Enforcement.
- I have been served with a Motion for Enforcement for child support – what do I do now?
After you have been served with the Motion for Enforcement, you will want to respond to the motion. You do this by filing an “Answer” in which you either deny that you have violated the order as your co-parent alleges or you assert an affirmative defense. Let’s look at both of these scenarios.
- Denial
If you have paid your child support, you are entitled to state so in your answer. This means that you would “deny” all of the allegations in your co-parent’s motion for enforcement that state that you violated the order in some way.
- Affirmative Defenses
You can also raise a number of affirmative defenses in your answer to protect yourself. In an enforcement action for child support, there are a number of common affirmative defenses. You can assert that your co-parent voluntarily gave you actual possession and control of the child, the period of relinquishment exceeded any court-ordered periods of possession, and you supplied actual support to your child during that period of relinquishment. For example, if your co-parent dropped your 10 year-old son off at your house and said that she was traveling Europe for the next six months and you covered all costs for your son during that six month period, then you could assert this defense. If you were covering all the costs and you had possession of your son, you should not have to pay child support as normal for those six months. You could also assert that you were unable to comply with the child support order. To prove this defense, you have to prove the following things: (1) you lacked the ability to provide support in the amount ordered, (2) you lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed, (3) you attempted unsuccessfully to borrow the funds needed, and (4) you know of no source from which the money could have been borrowed or legally obtained. This is a hard defense to prove, but it is possible if you really were in a dire position.
It is important to note that it is not a defense that you paid the outstanding child support payments after receiving notice of the enforcement suit. So, if you have failed to pay $6,000 in child support over the last few months and have been served with a Motion for Enforcement, it is a mistake to think that you could quickly pay the $6,000 and would not be subject to either civil or criminal contempt penalties. It is also not a defense to an enforcement suit that you and your co-parent have made a written or verbal agreement to reduce or modify child support after the judge rendered the existing final order. So, be aware that if you have been ordered to pay $2,000 per month in child support and you and your coparent later make an agreement to reduce the payment to $1,000 per month, you could still be found to have violated the court’s order regarding child support. That agreement between you and your co-parent is unenforceable.
Additionally, it is important to know about two technical rules regarding your response to the Motion for Enforcement. The first is the deadline by which you need to respond. An answer to a Motion for Enforcement can be filed at any time before the hearing. The second is the consequence of not responding at all to the Motion for Enforcement. While you do not “admit” all of the allegations in your co-parent’s Motion for Enforcement by not fling an answer, you might be subject to a default judgment. The movant must offer proof of their allegations, but nonetheless could seek to enter a default judgment against you. This essentially means that your co-parent could proceed in the case without you, and you could even be found to have violated the order without defending yourself. Therefore, you want to make sure that you file and answer and respond to the allegations in the motion for enforcement by either denying the allegations or asserting an affirmative defense to protect yourself.
Again, it is imperative that you show up for the hearing on the Motion for Enforcement. Texas Law Help is an excellent resource for finding examples of Answers you could file in response to a Motion for Enforcement.
- After the Hearing
The court will render an order after the hearing on the Motion for Enforcement. This order will grant some or all the relief that has been requested by the movant if the court finds that you have failed to pay child support. Be aware that the Texas Family Code gives the court the power to suspend your license (business, occupation or professional license, driver’s license, fishing license, or hunting license) for failing to pay child support.
If you have been served with a Motion for Enforcement relating to child support, it can be dauting to figure out what to do and how to defend yourself. To learn more about the process of an enforcement action and how to defend your case, consult with one of our attorneys in Katy, Sugar Land, League City, or Cypress today.