Saturday, September 21, 2013

Why I Disagree with the 2013 Changes to Child Support Contempt

The Purpose of Child Support

The purpose of child support is to make sure that there is sufficient income available to both parents to provide a safe home for the children while the children are in each parent's care. In other words we want mom to have enough income to provide a safe place for the children during her periods of possession and we want dad to have enough income to provide a safe place for the children during his periods of possession. That's why the courts will enter a child support order even if the parents share the children 50:50. Usually the parents do not share the children 50:50, so the another objective of the child support system is to push financial resources to where the children are.

The Goals of the Enforcement Process

Sometimes a parent does not pay child support as ordered. The United States Congress has instructed the states to take the enforcement of child support orders very seriously and, in Texas, we do. When a parent who has been ordered to pay child support fails or refuses to do so, the Chapter 157 of the Texas Family Code spells out an enforcement process that can ultimately result in the defaulting parent being put in jail for a while.

The goal of the enforcement process is NOT to fill the jails with "deadbeats" but rather to get child support income into the hands of the parents who are supposed to receive it. That is a critical point to accept in analyzing the good and the bad of any change to the child support system: How effectively does the change hasten the payment of child support from the obligor to the obligee?

The Value of a Contempt Finding

When a parent is being sued for not paying child support, the court answers 5 questions. Is there a valid, enforceable support order in place? This is a legal question, not a factual question. The court will often decide if the order is enforceable, as a matter of law, without any evidence or testimony from anyone. A support order written by a family law attorney or the Office of the Attorney General is nearly always going to be enforceable. Very often, support orders written by people who represent themselves are not enforceable. If the order is not enforceable, there is very little the court can do about the fact that the parent has not been paying.

The next question is whether the parent who is supposed to pay child support (the "obligor") is actually behind. This is a fact-sensitive question and the court will need to receive evidence. The usual moves are for the party seeking to enforce the order to show up with a list of payments logged by the Office of the Attorney General. Any payment that should have been made but that is not listed on that log is presumed to not to have been made. Next, the obligor presents evidence either that the payments were made but not properly recorded by the Office of the Attorney General or that the obligor was not able to make the payments, no matter how hard he or she tried.

Assuming the court finds that there are some payments that have not been made, the next question the court must answer is what is the total of payments that were not made? The court will add up all the missing payments, apply some interest to the total, and confirm the total as an arrearage against the obligor.

PAY ATTENTION: Once the court confirms an arrearage, it will impose a payment plan on the obligor. That means that if the obligor missed $10,000 worth of payments, the obligor will have to pay it back, but not all at once. What this really means is that the parent who receives child support has to finance the arrearage--in effect loan the child support payments back to the obligor and then get them back on a payment plan. If the parent who is supposed to receive child support had to take out credit card loans to support the children because the obligor failed to pay, then that parent will have to pay off the credit card with payments that trickle in from the obligor each month--all the while paying the generally usurious interest rates charged by credit card companies.

The fourth question the court resolves is whether the obligor's refusal or failure to pay was contumacious, meaning was it willful OR did the obligor have a legally adequate excuse for not paying in full. If the court believes that the obligor could have paid more than he or she did, then the court will find that the obligor is in contempt of court and will sentence the obligor to some jail time. This is called being found in contempt of court.

Finally, if the court finds that the obligor was in contempt of court, the court will decide whether the obligor should go to jail immediately OR be put on probation so long as he or she follows all the court's orders regarding the support of the child.

So that's the value of a contempt finding: The obligor can go to jail the same day as the court's hearing which creates a huge incentive for obligors to get caught up on their payments as soon as they can. Or does it, now?

The Law Prior to 2013

Prior to the 2013 change in the law, the Texas Family Code said that if an obligor pays his or her arrearage in full PRIOR to the child support enforcement hearing, the court could NOT find the obligor in contempt and therefore could NOT sentence the obligor to jail. It was guaranteed that if you owed child support but paid it in full prior to the hearing, you would not go to jail.

This was great for parents who needed their child support. You might not believe how many folks found themselves able to put together $10,000 or $20,000 the day before a hearing to pay the other parent for missed support payments. The obligors had a POWER INTEREST in paying a giant lump sum payment prior to the hearing. This encouraged the QUICK FLOW OF CASH that would allow the wronged parent to pay back in full any debt that he or she took out to support the children while the enforcement case was pending.

Obligors that could not come up with the money would have to take a chance at trial as to whether the court would find them in contempt and, if so, put them in jail. Obligors who paid up took no chances.

The Law After 2013

In 2013, the Texas Family Law Foundation, which is a lobbying group that promotes the interests of family law attorneys, convinced the legislature to change the law in a terrible way. The new law states that even if an obligor with an arrearage pays up prior to trial, the court can STILL find the obligor in contempt. With the new law, there is no reason at all for an obligor to pay in full before trial. At trial the next day, no matter what happens, the trial court is extremely unlikely to order that the entire arrearage be paid in full in a lump sum--the "deadbeat" will get the benefit of a payment plan and the parent who should have received child support will continue to finance the debt.

Why I Disagree with the Changes

The real purpose of the change was to help attorneys collect legal fees from obligors who get behind on child support. That's all this was about--helping attorneys collect their fees. I'm an attorney and I like to collect my fees, but the law could have been changed in that regard without destroying the huge incentive that obligors had to "make it right" prior to trial. Now, it will be easier for attorneys to collect fees (ha! but only on a payment plan) but the wronged parent will never again get a lump sum payment to get caught up on child support.

If you agree with my assertion that the goal of the enforcement process is the hasten the payment of child support to parents who need it, the you have to agree with my conclusion that this change in the law works against that purpose and will ultimately hurt many, many people who might otherwise have received large upfront payments from obligors trying to stay out of jail.

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