Not one I would have guessed, but thanks to John Kappel’s attention to detail and thorough research, it turns out Texas law does not allow for a party to get attorney’s fees in a successful enforcement action on spousal maintenance.
Why? Because in Texas, attorney’s fees can only be granted if allowed by statute or a contract between the parties. Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013).
While attorney’s fees ARE allowed by statute for enforcement of child support (Tex. Fam. Code 157.167), or enforcement of a division of property (Tex. Fam. Code 9.014), no such statute exists for the enforcement of spousal maintenance.
A Texas Court of Appeals held that a wage withholding order cannot be used to collect contractual alimony. This adds yet another difference between court-ordered spousal maintenance and contractual alimony for both clients and lawyers to know about and discuss.
The full opinion can be found here.
The most interesting part is that this invalidates Texas Family Code §8.101(b) to the extent it authorized wage-withholding for contractual alimony. The basis? Unconstitutional under Texas Constitution Article XVI, §28, which states that current wages for personal service are not subject to garnishment, except for the enforcement of court-ordered child support or spousal maintenance!
Changing a child support payment (whether your’s or your ex’s) is certainly possible, just make sure that all the bases are covered. Let’s look at the first group of steps needed, which can be found in Texas Family Code section 156.401(a).
- A “material and substantial change in circumstances” is needed. Here, we need it to be a financial change (either earning power or monetary need).
- Those circumstances must relate to the child or a person affected by the order.
- The change in circumstance must have occurred after the signing of the order.
With the above set of facts, changing that child support payment becomes possible. At the hearing, the above must be shown. Simple testimony is not always enough. The best way would be to show tax returns or pay stubs showing income at the time of the signing of the order, then current tax returns or pay stubs.
For an interesting case showing this process, look at In the Interest of C.H.C. by clicking the name of the case.
Before reading this post, make sure you know if the payments are contractual alimony or spousal maintenance. My prior post on the topic should help.
If a spouse (now ex-spouse) fails to pay contractual alimony, your remedies are the same as if they had breached any other contract. You look for the damages you suffer, which include both the payments outlined in the decree that the ex-spouse has not paid, any foreseeable damages, and attorney’s fees.
The missed payments should be easy to figure out. Tally up the amounts the ex-spouse has not paid.
Attorney’s fees are available through the Texas Civil Practice and Remedies Code section 38.001.
Foreseeable damages would be any additional penalties, fines, and other monetary amounts that the spouse could have foreseen you would suffer by their non-payment. For example, if the payments were known to be used to pay a mortgage, the paying spouse failed to make multiple payments, and the mortgage was foreclosed and the house lost, you could argue any additional penalties/fees, moving expenses, and perhaps other expenses were foreseeable and should be compensated.
Some issues for the suing party to consider are whether the ex breach the entire agreement or whether the breach was only of the specific payments not made. Things get more complicated here, since sometimes parties argue the contract was modified by different events or a pattern of past behavior, as well as the more limited breach of an installment contract versus the total breach. If arguments like this begin to surface, consult a lawyer familiar with this topic. It will serve you well, and in this setting, contingency fee contracts or retainer agreements are both typically available, depending on the firm.
Unfortunately, many people ordered to pay child support have had to file for bankruptcy. We see this occasionally, and while sometimes that person is attempting to avoid their child support obligation, many times the person truly is experiencing hard times. Even more unfortunately, that person may believe bankruptcy will stay, halt or eliminate their child support obligation – that is simply not the case. In fact, bankruptcy can make it easier for a person receiving child support to get paid.
To lay the argument out simply:
1) Child Support is seen as a domestic support obligation under the bankruptcy code – 11 U.S.C. 101(14A).
2) Domestic Support Obligations are not dischargeable through bankruptcy – 11 U.S.C. 523(a)(5).
3) In fact, the automatic stay associated with bankruptcy filings will not apply to collection of a domestic support obligation from property that is not part of the bankruptcy estate or with regard to a wage withholding order for future income- 11 U.S.C. 362(b)(2).
4) Finally, exempt property can be taken to satisfy domestic support obligations notwithstanding any State or Federal law to the contrary – 11 U.S.C. 522(c)(1).
What does this mean?
When a person (“debtor”) files for bankruptcy, they fill out certain schedules. Those schedules include all of their property, their income and where that income comes from. Because of (3) and (4), the person owed child support could look at those schedules, determine what the debtor is claiming is exempt, then file their Motion to Enforce Child Support. Texas is allows for a debtor to claim quite a bit of property as exempt, but the debtor must list it in the schedule, which the person owed child support can then show the Judge and simply request that property or that income to satisfy the child support obligation. While not a sure-fire way of getting that child support paid, looking through a debtor’s bankruptcy filing is a good start.