An Expensive Way to Save Money

When the Texas Attorney General's Office gets involved in a family law matter, you better be prepared to defend yourself.  The AG will not represent mother or father officially, but can tilt the scales in favor or one side or the other.  When the AG is involved, you need your own attorney.

The Attorney General is required to act in some circumstances to collect child support, establish parent-child relationships (paternity), make sure medical support is provided for children, re-coup state money that may have been paid to a parent or child and modify child support orders, among other things.  The AG acts under federal and state law.

Important rights and obligations are affected by actions in court initiated by the AG.  Parental rights are assigned to parents, including custody, the powers to make educational, medical and residence decisions, and possession  (visitation) schedules.  Retroactive and future child support are ordered.  Judgments are granted for past-due child support.

Parents and alleged parents sometimes receive various notices from the AG about some of the issues mentioned above.   You may be required to appear in court or you may be notified to come to the AG's office to negotiate an agreement for paternity and support, or just support.

If you receive such a notice from the AG, don't ignore it.  You need to immediately hire an attorney and prepare for court or negotiations.

You are mistaken if you think the AG will spend a lot of time with you, listen impartially to your side of the story or take time to develop a special possession schedule for your special circumstances.  The Attorney General has thousands of cases and is understaffed.  They will efficiently deal with your case like they deal with thousands of others, unless you have an attorney present to help you.

If you think you can't afford to pay an attorney, shop around for a less expensive one.

Without an attorney, you can end up with the wrong amount of child support, a terrible visitation schedule and without the rights and powers of a parent that are important to you.  You may have lost custody without realizing what you were agreeing to.

Without an attorney, there is a lot of pressure to settle and sign.  That same pressure is there when you have an attorney, but then you have someone who can slow things down and do it right.

Don't think you get a "do-over".  If you make a deal with the AG and it's written up as a court order, it will be quickly signed by a Judge and it will be very hard and EXPENSIVE to undo, if you are even able to do so.

Bottom line:  You need to spend a little money to protect yourself and your children.  It will save you money in the long run!

Does Selling a House Affect Child Support?

James J. Gross of the Maryland Divorce Legal Crier recently had an interesting post about a subject that comes up occasionally in Texas. He discussed how a Maryland judge ruled in a case where the mother sought an increase in child support from her ex-husband, in part because he had sold his house and had realized capital gains. In that case, the Maryland judge granted an increase in child support, but a smaller increase than the mother wanted, and the judge excluded the proceeds from the house sale from income for child support purposes.

The result in Texas would likely be the same for several reasons. Just as in Maryland, capital gains here can be considered part of the net income resources of a parent. Also, like in Maryland, the judge has some discretion in how and whether the capital gains will be included when calculating child support obligations. Here are some of the considerations.

• If the house equity was considered an asset to be divided in the property division between the parties, then it would be double-dipping to also consider the same equity as income.
• If the house was bought after the divorce and flipped for a quick profit, then it could be appropriate to count the proceeds as income. They are like a paycheck in that situation, although it would be reasonable to deduct related business expenses.
• If the sale is a one-time event, it could be considered in setting the support for the limited time when the gain was received, but should not be factored into future support since the gain won't be there again.
• If capital gains are regularly received, even if the amounts are hard to predict and are not guaranteed, they are more likely to be considered as income for child support purposes.

If capital gains could be an issue for child support in your case, be sure to provide full information to your attorney.

Tips on Child Support

J. Shannon Cavers of the Houston, Texas Divorce and Family Law Attorney Blog has a recent post about the need to keep good child support payment records. When someone is ordered to pay child support, the best approach is to pay through the court registry. Currently, most payments go through the Attorney General’s office in San Antonio. They do a good job of keeping records and they are able to send the funds back out with a very short turn-around. Their records are taken as gospel in any court, so letting them keep your records by sending payments through their office is a very prudent course of action.

Sometimes, however, for various reasons, a parent paying support does not want to send the payments through that office, or the parent receiving support may request direct payments to him or her without going through the child support office. Sometimes, emergencies come up and the receiving parent may need to get the funds early or just in the quickest manner possible. For any of those or other reasons, the paying parent may make some direct payments outside the child support system. While that may be the best course of action for several reasons, it has the drawback of not creating a reliable paper trail for the payment.

If cash is paid, a receipt should be obtained, but it can be (and often is) lost and memories grow dim as time passes. Even if support is paid by check, a copy of the check should be retained, but those are hard to come by now. Apparently, banks only keep copies of account records for about seven (7) years. Since child support can be enforced well past the child’s 18th birthday, the paying parent can be put at a serious disadvantage if an enforcement action is started years after the direct payments were made.

Another pitfall relating to child support is the common situation where direct payments are made, but the amount is less than the amount ordered. This often happens because a deal was made that gave credit to the paying parent for some other expense he or she paid for the child or the other parent. The record of payment will show an improper amount which could result in an enforcement action.

Not to be too obvious, when child support payments have been made, but there is no reliable record to confirm that, the courts generally consider them unpaid. Likewise, when child support payments are made in a manner different from the way described in the court order that controls the issue, the payments are often completely discounted. In other words, without proof and without following proper procedures, the paying parent likely will not get official credit for payments. The result: the paying parent may be forced to pay the support a second time.

Suggestions to help avoid problems:

1. Always pay the full amount on time.

2. Use a wage assignment to have the payments automatically deducted from your paycheck and recorded by the state.

3. If you make direct payments of child support, keep a copy of the check or a receipt for back-up. Get a receipt signed by the receiving spouse.

4. Keep your child support records in a safe deposit box for each year until your exposure for child support is ended. Show your divorce decree or order to a lawyer so the last day of exposure can be calculated.

5. If you and the other parent agree to do anything different from what is provided in the divorce decree or other court order, memories fade and you could have trouble later. It would be wise to have a brief written agreement which states what was agreed to and why it was. That agreement should be kept in a safe deposit box.

6. If an agreement is reached to change the amount or other details regarding child support, the best course of action is to put it in the form of a Rule 11 Agreement which is then filed with the court. A proper Rule 11 Agreement that is filed with the court can have the effect of a court order.

An extra dose of caution can go a long way in protecting you on the issue of child support payments. It is no longer unusual for paying parents to face a child support enforcement action after a child is 18. Making the payments properly and keeping good records can prevent a lot of problems and help you avoid making the same payments twice.

One More Fee to Pay

Beginning October 1, many families receiving child support will have to pay a new $25.00 annual fee for the state and federal governments' help in collecting the support. States have some options about whether they pay the cost or charge the custodial or noncustodial parent. While it may not seem like much money, the federal government could collect about $172 million over the next five years. The states will receive about half as much as the federal government does. The fee was contained in the Deficit Reduction Act of 2005, according to a recent Associated Press story by Kevin Freking.

The fee is to help pay the costs for record keeping, enforcement and administering the collection and dissemination of child support funds.

What to do If the Attorney General Knocks on Your Door (Figuratively Speaking)

A "knock on the door" from the Texas Attorney General can take several forms: a letter, a phone call to you, a call to your employer or service of papers on you, among other ways. The knock is to notify you that something is about to happen in court or by a court order. If you are a parent, or alleged to be a parent, the knock is probably to notify you either that you are a parent and have an obligation to start supporting a child or children or they want to examine your financial situation and maybe raise your existing child support or they want you to start paying the support that was previously ordered.

What should you do if you get notice in some form from the A.G.’s office?

Contact a family lawyer, and right away. Don’t delay, especially if you find out about a court date. You need to understand the law and what your options are. The A.G. is not involved to help or represent you. They can’t give you legal advice. They are not a completely neutral party in the process. You need your own counsel. You may be able to work out a better deal by resolving the matter before it goes to court, so you should hire an attorney as soon as possible. It may also take a while to gather information and prepare for court.

Why the A.G. Gets Involved

There are numerous ways for the Attorney General’s office to get involved in your business. A parent could request assistance from the A.G. to collect child support. The State of Texas may have initiated the action if some state assistance has been paid to a parent because of a child. Federal and state laws have forced the A.G. to become very active in collecting child support. They help parents who need to get an initial court order designating someone as the father and ordering the payment of child support. They may also help parents collect past-due child support owed sometimes by "deadbeat dads" (or moms), but also owed sometimes by dads or moms who lost their jobs or became ill or for some other reason could not work or had their pay cut. In addition, the A.G. may periodically review cases to see if support is being paid and to determine whether support should be raised or lowered. (They rarely act to get child support reduced.)

What are some of the things that can happen if the Attorney General comes knocking?

1. Obligations can be created. A court can order retroactive child support all the way back to the birth of the child. The obligation usually will extend until the child is 18 or finishes high school (whichever is later) and can extend beyond that in special circumstances. If there is a court order, you will likely be ordered to pay court costs and attorneys’ fees. There will probably also be an order for medical child support: providing or paying the cost for the child’s health insurance and paying a portion or all of the unreimbursed medical expenses.

2. There could be an increase in child support.

3. An enforcement action can have significant penalties. If the court finds a child support arrearage (meaning there is past-due, unpaid child support), a judgment with interest may be entered against the obligor (a nice legalese term for the person previously ordered to pay the money) and there would be an order for payments to be made until the total was paid off. There can also be an order for confinement in jail for up to six months for each proven violation of the court order, although some judges will allow a person to be put on probation or community supervision. Probation permits a person to stay out of jail if they report at least once a month to a probation officer and comply with a long list of other requirements. State law also provides for possible suspension of various licenses issued by the state, including driver’s license and professional licenses, among others.

Cautions

Several things with serious consequences can happen. You can do a lot of damage to yourself by proceeding without representation.

1. Don’t sign anything regarding children or child support without consulting an attorney. You may not understand things very well. The A.G.’s office does know what they’re doing. They are not necessarily trying to take advantage of you, but their objectives and your interests may be different and you may make bad decisions if you proceed without the assistance of an attorney.

2. You might think you can start out at a hearing or court date and then stop it if you don’t like how it’s going. That’s not likely to happen.

3. You may think you can agree to something outside of court and it won’t be binding on you, but it may be binding if you sign it.

4. If you think you can stop everything by just not showing up or by refusing to accept a set of papers, you are wrong and you may end up with a judgment or child support obligation owed by you.

Best advice: See a lawyer immediately!