Marivonne R. Essex, "The Red Headed Lawyer"
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Don’t Pay Directly; Pay Through the System

Posted May 3rd, 2018 | by The Red Headed Lawyer

Are you a non-custodial parent who is ordered to pay child support in Texas? If so, listen up. This article may save you a ton of money.

First, a little background. Child support is ordered initially as part of a divorce, paternity case, child support review order (Attorney General action), or suit affecting the parent-child relationship. The judge or the Attorney General signs an Income Withholding for Support Order (IWO) along with the case order. The paying parent (or the attorney) pays a $15 fee and requests that the clerk issue notice to the employer of the IWO. The IWO is then sent to the paying parent’s employer. The employer has a duty to begin withholding from the paying person’s wages within 14 days after receipt. The employer is ordered to send the funds withheld to the Texas Child Support Disbursement Unit in San Antonio. The disbursement unit then disburses the funds to the receiving parent. (Note: if a paying parent changes jobs, he or she gets a simple form from the district clerk and pays the $15 fee and the district clerk then sends the IWO to the new employer.)

Wage withholding for child support is mandatory in Texas, and this is a seamless process which occurs thousands of times a year. It works best for those paying parents who have an employer and are not self-employed or unemployed.

Most orders also contain an order directing that all child support payments be made to the disbursement unit. Thus, self-employed or unemployed persons who are not subject to an IWO make their payments directly to the disbursement unit. This can be done by mailing the payment directly to the unit to the address in the order or by paying through an authorized facility such as a grocery store or other entity which accepts those payments.

Important: All payments made to and accepted by the unit are what in law is known as prima facie evidence of payment. What does this mean to the paying parent? It means that the person does not have to have a copy of paycheck stubs, money orders, or payment receipts of any kind if payment is ever disputed. A printout of the payment history from the unit proves without question that the payment was made. Getting a printout is as simple as going to the Attorney General’s website and printing out a payment history.

So if the process is so seamless, what can go wrong? Actually, a lot, but almost all of it arises by parents deciding to use their own methods of payment or with a few attorneys whose clients convince them to use methods to circumvent the system. In some cases, a receiving parent will convince the paying parent that it simply takes too long to get the money from the unit, that direct payments are much faster, and that a canceled check or money order receipt will be proof of payment. If an IWO has been issued and the clerk has sent a notice to the employer with the IWO, the employer is obligated to withhold, that won’t work. If, however, nobody pays the $15 administrative fee to have the IWO sent to the employer, the employer will not receive the IWO and will not withhold funds. Some paying parents will convince their attorney not to have the IWO sent, saying they prefer to pay directly to the receiving parent. In other cases, the paying parent prefers to pay directly to the receiving parent, believing that the employer will be angry at the extra work involved or it will somehow reveal details of their lives they prefer to keep private. The paying parent may request the attorney to include language suspending payment through a wage withholding order and requesting that an IWO be issued only if there is a delinquency.

Important: If a dispute over payment arises, a judge has the discretion not to count payments not made through the unit, even if they are such things as canceled checks. Many judges in fact WILL NOT accept proof of payment which has not been done through the unit.

Important: To recap, if you are a paying parent, you are AT RISK at having to pay again, even if you have already paid, if you pay directly to the receiving parent and do not pay through the disbursement unit or through an IWO. Fact: if you decide to do this, you have to keep proof of all the payments and HOPE the judge will accept your proof. Another fact: Most banks allow a customer access to canceled checks for a limited time, usually about three years. Do not think you can easily retrieve anything before that period, EVEN IF the judge would accept it.

Important: You can be AT RISK for having to reimburse the State if the receiving parent at any time uses State services for the children such as food stamps, Medicaid, or any such available services. The State charges a fee for those services, even though it is not usually apparent to either the paying or receiving parent. If you are making child support payments directly to the receiving parent, YOU will be obligated for reimbursing the State for those services. If you are paying through the unit or an IWO, the State will withhold those charges from the receiving parent’s child support.

Case in point: I recently had a case where a father made direct child support payments for about 8 years, all timely made. Suddenly, he received in the mail notice from the enforcement unit of the Attorney General’s office that he owed approximately $200,000 in past-due child support. Luckily for him, his current wife had kept a ledger with a record of each payment and had a canceled check for each payment. We were able to get him credit for the payments through an agreement, even though we were in a court which does not accept proof of direct payments. It turns out he owed the State almost $4,000 in reimbursement because the receiving parent used State services, and he was required to pay that to the State. Many hours in court and the cost of taking off work, many dollars in attorney’s fees, money for State reimbursement, which he would not have had to pay. You have to ask yourself, is it worth it? So simple just to pay through the unit or IWO. No excuses.

In summary, don’t pay directly for child support; pay through the system!