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Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Court Lifts Texas OAG Suspension of Driver’s License for Failure to Pay Child Support

Originally published by Kelly McClure.

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The Texas Office of the Attorney General (OAG) is responsible for certain child support services, including collecting and enforcing Texas child support orders.  Recipients of certain public assistance programs may automatically qualify for the OAG’s child support services, but others have to apply for the services.  The OAG has a variety of ways to enforce child support, including filing liens, issuing writs of withholdings to the parent’s employer, suspending driver’s licenses, and intercepting tax refunds or other money from state or federal sources.

In a recent case, a father challenged the OAG’s enforcement actions against him.  The father was ordered to pay child support beginning in December 1996.  The court also issued an Order Enforcing Child Support Obligation in October 1999, including a cumulative money judgment for $15,000 plus interest against the father in favor of the Attorney General.

In 2015, the OAG sent a notice of child support lien to the father’s bank and issued administrative writs of withholding to his employers.  The OAG also filed a petition with the State Office of Administrative Hearings for the father’s driver’s license suspension.

 

The father filed a motion alleging the OAG violated provisions of the Texas Family Code because it failed to obtain a cumulative money judgment within 10 years of the child becoming an adult.  The OAG did not appear at the hearing.  The trial court lifted the driver’s license suspension, rescinded the writs of withholding, declared the child support liens void, and ordered no further wage withholding.

The OAG filed a restricted appeal.  The OAG argued the trial court did not have subject matter jurisdiction over the driver’s license suspension because the relevant statute required the father to file his petition for review in Travis County district court.  A proceeding regarding the suspension of a parent’s driver’s license for failure to pay child support is governed by the Administrative Procedure Act.  The Administrative Procedure Act requires a person seeking judicial review of a contested case to file the petition in a Travis County district court unless another statute provides otherwise.  TEX. GOV’T CODE ANN. § 2001.176.

The father did not file his petition in a Travis County district court.  The OAG argued that the trial court did not have subject matter jurisdiction over the issue.  The appeals court, however, found that that the statute did not grant Travis County district court with exclusive jurisdiction, but instead provided a mandatory venue.  Mandatory venue, the court noted, may be waived if a party fails to make a timely objection.  The OAG had not made a timely objection.

The OAG also argued the trial court had exceeded its subject matter jurisdiction in enjoining additional administrative writs of withholding.  Under TEX. GOV’T CODE ANN. § 22.002(c), only the Texas supreme court has the authority to issue a writ of mandamus or injunction against an officer of Texas’s executive departments to order or compel performance of a duty state law authorizes the officer to perform.  The appeals court noted  the OAG is an officer of the executive department and is authorized to enforce and collect child support through administrative writs of withholding.  Thus, only the supreme court could enjoin the OAG from issuing such writs in this case.  The appeals court found that the portion of the order stating that “no further wages be withheld in this cause…” constituted an injunction.

The appeals court vacated the part of the trial court’s order that enjoined the OAG from issuing additional administrative writs of withholding and affirmed the rest of the order.

The OAG will become involved in certain cases involving public assistance.  Although parents in other cases may seek the OAG’s assistance, parents should be aware of what OAG enforcement entails.  Once the OAG is involved, the parents are not able to choose which enforcement actions will be taken.  If you are facing a child support issue, an experienced Texas child support attorney can help you consider your options and protect your rights.  Call McClure Law Group at 214.692.8200 to set up an appointment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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who will pay attorney

Who Will Pay Attorney’s Fees During Your Divorce?

who will pay attorney's fees during your divorce

 

The attorney’s fees in a divorce case can be paid in several different manners depending on all the circumstances in the case and trial. Learn the different manners of paying attorney fees for two spouses in a divorce.

Who Will Pay Attorney’s Fees During Your Divorce?

Can I Get My Ex to Pay My Legal Fees?

A contested divorce can escalate in costs rapidly to tens of thousands of dollars although a simple uncontested divorce may cost less than $1,000. Expenses can add up quickly when you have a contested divorce that requires many court appearances by your attorney and hours of preparation for the hearings.

Real estate appraisers and forensic accountants are additional costs in a divorce. A divorce judge will award your spouse with a portion or all of your attorney’s fees in some distinct cases. It is at the discretion of the court as to the amount and the court is considered to be an expert on all attorney’s fees.

A Level Playing Field

In most states, spouses are responsible for paying their own legal fees and costs incurred in a divorce proceeding. However, several exceptions can exist, especially when one spouse earns a considerably higher amount of wages than the other does.

It would be unfair for the higher paid spouse to pay a top-notch attorney and leave the other spouse without an attorney because they can’t afford one. At times, the state may order the wealthier spouse to pay all attorney fees and court costs of their spouse.

A judge can order the spouses to liquidate some of their marital assets so that your legal fees can be paid. Generally, this works by the court deducting what you received to pay your attorney from your share of the liquidated asset at the finalization of the divorce. Your lawyer was hired by you and worked for you to protect your best interests and therefore should be your costs.

Some Fault Based Issues

Judges generally do not order one spouse to pay the other spouse’s legal fees due to marital misconduct, which led to the divorce. For example, if your spouse commits adultery and the grounds upon which you file for divorce, your judge most likely won’t order your spouse to pay your legal fees as a punishment for their misbehavior. Now if your spouse was inflicting spousal abuse on you several times during the marriage and there is evidence of this fact, the court may tell your spouse to pay all your legal fees and costs.

If your spouse is dragging out the litigation process by filing motions that are unnecessary or if they are refusing to cooperate, then some courts will order them to pay your legal fees as a form of compensation for their actions during the case. It’s not usually the entire amount you owe for your divorce, but he may have to pay for the court costs for additional appearances that were brought about because of his bad behavior.

A Few More Options

You need to clear some other options with your attorney before you act on them. You may be able to cash in a retirement account, but if you contributed to the account during your marriage, it is most probably considered marital property, making it a shared asset between you and your spouse.

Ask your attorney also before liquidating any assets. If the court finds that it’s okay to do so and generate money for your fees and costs in the divorce, your spouse will likely put up a big fuss, but the court has the option to do so and then deduct the money from your share of marital property upon finalization of the divorce decree. You may also consider borrowing money from a family member, taking out a loan in your name solely and paying the loans back after the divorce.

Professional Funding May Be a Choice

If there is no way possible that you can pay your attorney’s fees and legal costs associated with your divorce, you can ask your divorce attorney about any private investors who may be willing to fund your divorce in exchange for a portion of the assets you will receive when the decree is finalized.

Some attorneys may occasionally be willing to take their fees after the case is over and after you get your share of assets—but this is definitely not the norm. You can also ask your lawyer about a payment plan for his fees on a monthly basis, but you will still need to pay the experts’ fees that are necessary to prepare your case for you.

All awards for attorney fees are final judgments from the court and being such, all are appealable. If you believe the awarded fees are too high or unjust, either party may appeal the judgment.

The court system wants to award attorney fees in the proper manner without bias to any person. Their job is to make the right choice that is not too little, not too much or simply unjust to either party. That being said, the awards are highly discretionary and the case law gives no exact lines to follow.

You should be able to be armed with the knowledge you need when getting a divorce about attorney’s fees, legal fees and court costs and who should pay them. Do keep in mind that you have a few alternatives to consider.

The post Who Will Pay Attorney’s Fees During Your Divorce? appeared first on Divorced Moms.

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