Child Support Offsets

When child support is unpaid it builds up as an arrears. In Texas, the Attorney General’s child support division keeps track of these child support arrears and the past-due balance. This includes child support and any cash-medical-support owed for one parent paying the other for monthly health insurance costs.

In Texas, sometimes child support builds up because the custody schedule has changed and parents agree between themselves to start sharing custody or flip custody. When this happens they assume child support will automatically stop. This is not the case. You need a new court order changing the child support before anything will stop or change from the old order.

If you have this situation, where custody was changed but child support was not, you might be entitled to offsets on that child support that built up during the changed possession time. The credit is only available for those changed months and you only get a credit for the amount due under the old order, not the other parents theoretical child support they might’ve owed due to the change in custody. You need to go back to court if you want child support from the other parent following a custody switch.

Texas Family Code 157.008 provides

Sec. 157.008.  AFFIRMATIVE DEFENSE TO MOTION FOR ENFORCEMENT OF CHILD SUPPORT.  
(a)  An obligor 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 a child.
(b)  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 supplied by the obligor.
(c)  ...
(d)  An obligor who has provided actual support to the child during a time subject to an affirmative defense under this section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.
(e)  An action against the obligee for support supplied to a child is limited to the amount of periodic payments previously ordered by the court.

This means that, as long as you file a claim putting everyone on notice that you will argue this in court, that the other parent agreed to the custody change (you didn’t just take off with the child(ren) over their objection), and you’ve supplied care for the children while with you. Proof can be school records showing the change of address, doctor bills or paperwork showing the new address, and care can be any type of financial support, i.e., food, clothing, shelter. This means the children have to actually live with you, not with another family member, friend, or on their own.

These claims and providing proof in the right way during a hearing can be tricky. It’s best to enlist the help of an attorney if this is a factor in your case.

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