A major problem for parties who either fall behind on child support payments; or, in the alternative do not pay their court-ordered child support, is for the Court or the oblige to file an enforcement action against the obligor for nonpayment of court-ordered child support. And, yes, a person can be jailed in Texas for nonpayment of child support.
The court of continuing jurisdiction retains jurisdiction to render a contempt order against an individual for failure to comply with the order of possession or fails to comply with an order to pay child support. However, in child support cases, the court retains jurisdiction to render a contempt order for failure to comply with a child support order if the motion for enforcement is filed not later than the second anniversary of the date the child becomes an adult; or, on which the child support obligation terminates under the order or by operation of law.
Our advice to our clients is to avoid failing to pay court-ordered child support. In most cases, our advice to clients is to make at least a minimum payment towards the obligation to avoid getting flagged for nonpayment of support. It is also an important step if a party falls behind in child support payments for various reasons. One of the most common reasons that an individual falls behind in child support payments or just does not make a child support obligation is because of unemployment or underemployment. Once a party becomes unemployed, it is necessary for the party to modify its obligation with the court so that enforcement action is not filed.
The Court is not going to eliminate a child support obligation on a case. However, in some instances, the parties enter into agreements to abate or modify the child support obligation by agreement. If an agreement is reached with the obligee to abate child support or to modify child support, the agreement must be presented to the court of continuing jurisdiction for it to be made part of the record. It is mandatory that the court is made aware of the agreement to modify child support; and, for the agreement to be made part of the record.
The court also retains jurisdiction to confirm the total amount of child support arrearages and render a cumulative money judgment for past-due child support, as provided by section 157.263 of the Texas Family Code, if a motion for enforcement requesting a cumulative money judgment is filed not later than the 10th anniversary after the date the child becomes an adult; or, on which the child support obligation terminates under the child support order or by operation of law.
How does a party assert a defense to enforcement? The issue of the existence of an affirmative defense to a motion for enforcement does not arise unless evidence is admitted supporting the defense. The Responding party must prove the affirmative defense by a preponderance of the evidence. Usually, there is no affirmative defense to a motion for enforcement of child support. The party has either paid his child support or they have not paid the child support.
In some cases, the Respondent may plead as an affirmative defense in whole or in part to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of the child. The voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession of and access to the child and actual support must have been provided by the obligor.
In an event, it is a much better policy for an obligor to never be placed in a situation where the obligee has the leverage to file a motion for enforcement. It is a no-win situation for the obligor. Our advice: pay your child support on time.