Disclaimer:  The legal information provided on this website is the product of Legal Aid NorthWest Texas (LANWT). None of the legal information on this website is associated with or the product of the Office of the Attorney General of Texas or any of its employees. 

CHILD SUPPORT ARREARAGES 

If child support has not been fully paid as ordered, child support arrearages accrue. In order to enforce the child support obligation, a Motion for Enforcement may be filed by the custodial parent, a government agency such as the Attorney General, or in some larger counties, the Domestic Relations Office for that county.

Can I be put in jail for not paying child support?

Yes. You may be placed in jail for up to six months for not paying child support. The legal basis for placing you in jail is “contempt of court.” Contempt of court is a legal term that means a court order is not being followed. You may also be fined up to $500 for each violation and have to pay attorney’s fees and court costs. You have the right to be represented by an attorney throughout a contempt proceeding. If two conditions are satisfied, you also have the right for the government to provide you with that attorney free of charge: 

• You must prove that your income is very low or you have no income; and

• The result of the hearing must be that you are likely to be placed in jail. 

In some cases, the law allows you to be imprisoned for a specific amount of time and/or pay a fine. This happens when you are criminally prosecuted and imprisoned for nonpayment, which is a felony. As of September 1, 1999, a felony conviction is sufficient to deport someone who is not a citizen of the United States. 

How will my being placed in jail affect the amount of support I owe for the time I am incarcerated? 

Your child support order will continue while you are in jail. You will need to petition the court to ask for a reduction in your child support amount based on what you can earn while in jail or in prison. While this may be difficult, it is important that

you try to do this. It is up to the court to determine whether to decrease your child support because you have been imprisoned. Many non-custodial parents believe that if they get

behind at a time when they are legitimately unable to make a payment, what they owe can later be reduced or discounted by the court when an explanation is given. However, if you wait to explain your changed circumstances, the court will be unable to reduce the back payments you owe. It is very important that you notify the court immediately, provide proof of the reduction in income, and ask that your payments be reduced accordingly. If you do this, the court may temporarily or permanently reduce the amount of future payments.

What other action might the court take if I fail to pay child support?

The court may find you in contempt and sentence you to a jail term and/or fines, but they may suspend the sentence and place you on community supervision (probation). Some of the conditions of the probation may include requirements to pay your child support in full and on time, make additional payments toward the child support arrearage, pay probation fees, and pay the attorney fees of the other party. Probation can last up to ten years. If you fail to follow all the terms of probation, your probation could be revoked and you will serve the entire original sentence in jail.

If you are served with notice of an enforcement hearing and fail to attend, the court could issue a warrant for your arrest and have you brought into court. You could also be ordered to post a bond before you are released so it is vital that you do not ignore any summons by the court.

A person seeking to enforce the child support obligation through contempt of court must do so not later than six months after the child becomes an adult or the date on which the child support obligation otherwise terminates under the original order. However, the court retains jurisdiction to enforce the child support through other means, which are discussed below.

Some of the other methods to enforce the child support arrearage include filing a lien on your property, including personal property, bank accounts, and any real estate you may own. Some property, such as your homestead, may be exempt from this lien. Consult an attorney for further information.

Another common tool for enforcing child support obligations is the suspension or revocation of state-issued licenses. This means ANY license issued by the state can be suspended or revoked for not paying child support. These can include your driver’s license, professional licenses such as plumber’s license, law license, medical license, CPA license, etc., including hunting or fishing licenses.

One possible defense is that you did not pay your child support because the custodial parent voluntarily relinquished actual possession and control of the child to you. If the other parent sent the child to live with someone else, other than you, this defense will not help you. The voluntary relinquishment must have been for a time period in excess of your regular visitation periods.

Another defense might be a lack of ability to pay the amount of child support ordered by the court. The court must be convinced of all of the following:
 

1. You lacked the ability to provide support in the amount ordered;
2. You had no property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
3. You actually attempted to borrow the funds needed but were unsuccessful; AND
4. You knew of no source at all from which you could have borrowed or obtained the money by ANY legal means.
    

Other possible defenses include technical problems with the original child support order or with the enforcement motion. An attorney can advise you about the possibility of this defense.

Partial payments of child support are taken into consideration by the court. If you are behind on child support or have been served with a hearing notice, try to negotiate with the other party and work something out.