Last Updated on November 16, 2022 by Benson Varghese
Raising children costs money, and both parents must share financial responsibility.
That responsibility remains even if the parents are no longer a couple. And the obligation remains, in most cases, until the child turns 18. If your ex-spouse has stopped paying their court-ordered child support – or never started – you are entitled to retroactive child support.
What Happens if My Ex Owes Back Child Support?
Back child support, called arrears in legal terms, is any money that should have been paid earlier and has yet to be paid. This could include child support, medical support, or interest owed to the state on unpaid amounts.
Texas family law courts determine how much and in what way child support arrears are paid. The support-seeking spouse or the Texas Attorney General’s office can file enforcement against the other parent. If the judge so determines, each child support payment missed could be a separate violation of the underlining support order.
This process of determining what is owed and requiring payment by court order is called Confirmation of Arrearages in Texas Family Code 157.263.
In this blog post, we’ll explain back child support arrears, how the Texas courts handle it, the punishment for failure to pay and how payment amounts are calculated. But first, please watch this video by Fort Worth family law attorney Turner Thornton who explains what happens when a party gets behind on child support.
What does arrears mean in Texas child support?
Arrears is the legal term for unpaid or past-due child support payments. Child support arrears result from a failure to pay current child support established by an existing child support order. They can also be assessed when an order is established to cover for the time when payment was not made, which is known as retroactive support or back child support.
Child support arrears can’t be modified and are on top of any currently-owed payments. The court is unlikely to force someone to make one large payment of child support arrears. Instead, the judge is likely to add a monthly increase to what is owed to the already established monthly payment amount.
What is the punishment for not paying child support in Texas?
The Texas Penal Code 25.05 allows a parent to be arrested for failing to pay child support. The offense is called “criminal nonsupport” if the ex-spouse intentionally or knowingly declines to financially support their child. Criminal nonsupport is a state jail felony punishable by up to two years and a maximum fine of $10,000.
Do child support orders stop if the parent is incarcerated in Texas?
Child support orders do not automatically stop because of incarceration, and the arrears might have substantially increased if the order was not modified during incarceration. Child support arrears remain until paid, even if you file for bankruptcy.
How does Texas collect child support arrears?
Texas law allows authorities to enforce child support arrears in multiple ways, including:
* placing a lien on bank accounts or property;
* intercepting federal income tax returns (when applicable);
* garnishing social security retirement benefits;
* intercepting civil settlements, insurance payouts, and lottery winnings.
What is retroactive child support in Texas?
If a child support order from the court is on the books and your ex-spouse hasn’t paid you in months or years, you’re likely eligible to receive retroactive child support.
In Texas, this is often granted the same day the judge orders regular monthly child support. One parent may owe retroactive child support to cover expenses between the filing date of the divorce petition and the date of the support order.
Of course, another example of a retroactive child support scenario is when the noncustodial parent has refused to pay for any of the child’s expenses.
What is the statute of limitations on child support in Texas?
Generally, Texas courts have held that back child support is reasonable for up to the previous four years. However, if the parent ordered to pay child support has failed to make payments for longer than four years, the court could enforce a more comprehensive payment amount.
The parent seeking support would need to prove to the court that the noncustodial parent knew about their support obligation and purposely declined to pay. Also, if the underlining court order specifically includes medical expenses in the form of reimbursing a health insurance premium, the parent could be exposed to additional violations if the payments aren’t made.
Is interest added to back child support in Texas?
Yes. The state charges 6 percent interest on unpaid child support. That means if a parent stops making payments or pays less than the required amount, they will owe more than the original court-ordered amount.
Can you sue for back child support in Texas?
Yes. If you are owed court-ordered child support you can sue in Texas. The guidance of a sophisticated Texas family law attorney can help you devise a plan and collect evidence necessary to present to a judge.
Courts can order back child support in cases that meet specific criteria. Texas Family Code Section 154.009 allows a court to order a parent to pay retroactive child support if they have:
* Not previously been ordered to pay support for the child; and
* Not been a party to a lawsuit in which support was ordered
Texas family law judges have the discretion to determine if the retroactive child support is in the best interest of the child based on the facts of the case.
Is back child support available after age 18 in Texas?
Yes, even if the child has turned 18, you can still sue for child support arrears in Texas. Texas allows arrears suits for up to four years after the child’s 18th birthday. The exact amount of payment, including how many years back the judge finds reasonable, depends on the specific facts of each case. A judge could order payments from anywhere between four and 18 years.
What are the factors Texas judges use to establish back child support?
Each back child support case is different. The judge will evaluate the details and facts to determine whether back child support is reasonable.
The factors a judge is likely to consider include, but are not limited to:
* Was the noncustodial parent aware of their responsibility to support the child?
* Did the custodial parent attempt to inform the noncustodial parent of their commitment to provide child support?
* What was the financial situation of the noncustodial parent during the time period when they did not support the child?
* What is the current financial condition of the noncustodial parent?
* Has the noncustodial parent provided financial or otherwise support outside of a court order?
* Will the retroactive child support order impose an undue financial hardship on the noncustodial parent?
How is back child support calculated in Texas?
The Texas Family Code section 154.125 lays out retroactive child support payment guidelines. It’s very similar to how it determines current child support orders, just with the additional step of adding up the total number of outstanding monthly payments.
Payments are based on the noncustodial parent’s net resources.
The judge follows this framework. They are required to evaluate the total net resources of the noncustodial parent during the relevant period in which they failed to pay child support. The court then calculates a percentage of the noncustodial parent’s monthly income. Depending on the number of children the ex-spouses share, the rate determined by the judge dictates the retroactive amount.
Retroactive child support can be ordered from when the spouses separated.
Texas judges rely on state guidelines to help determine the amount. In the most basic terms, one child requires 20% of the net resources, and each additional child adds 5% to the total, with a cap of 40% for five or more children.
If more than one child support court order exists with more than one custodial parent, the calculations are more complicated.
What are the Texas child support payment guidelines?
|Children before the court||Percent of net resources|
|5 or more||40%|
What is the child support evader program in Texas?
The Texas Attorney General’s office operates a website that tracks residents who owe $5,000 or more in child support and have an outstanding warrant for their arrest. The Child Support Evader Program includes a website highlighting some of Texas’ most egregious offenders. The site consists of the offender’s full name, birth date, mug shot, and last known town of residence. Some of the most recent offenders listed on the site include:
* A 41-year-old Houston man who owes more than $255,000 for one child
* A 53-year-old Illinois woman who owes more than $84,000 for two children
* A 63-year-old San Antonio man who owes more than $170,000 for three children
* A 43-year-old Lubbock man who owes nearly $70,000 for two children
Is your ex behind on child support? Call us.
Has your ex-spouse stopped paying child support? Are you struggling to provide for the child you share? You can take them to court to enforce payment. The Varghese Summersett Family Law Group will fight for you and your children to ensure those obligations are met. We have more than 30 years of combined experience and extensive knowledge of Tarrant County family courts. Call us for a consultation at 817-900-3220.