If you're a parent in Texas and you're going through a divorce, or your relationship has ended, you should know that the courts are required to make sure your children receive enough financial support. In this situation, one of two things will happen: either you'll be named the "obligor" and ordered to pay child support, or you'll be deemed the "obligee," and you will be entitled to receive payments on behalf of your children.
If you're an obligor and you fail to make child support payments as ordered,you create a financial hardship for your children. For that reason, Texas law has a series of remedies designed to help obligee parents collect support and punish delinquent obligors. Many of these remedies are well-known to the general public, such as driver's license revocations, revenue recapture of tax returns and lottery winnings, and even jail time for contempt.
A lesser-known, but very effective remedy in Texas is called a "child support lien," which enables obligees to attach a claim for money to an obligor's property.
Generally speaking, a "lien" is a legal claim that is lodged against real property (real estate or buildings) or personal property (all other kinds of movable property) because the property owner owes money to the lien holder.
It's important to know that in the eyes of the law, all property is either "exempt" or "nonexempt," but only nonexempt property can be subjected to a child support lien.
Exempt property consists of things like clothing, an automobile used for work, or a pension fund that the owner requires to meet basic life needs. Exempt property can't be garnished, taken in bankruptcy or tax proceedings, or made the subject of a lien, because that would strip the owner of the ability to meet essential needs.
Non-exempt properties, on the other hand, are things like valuable collections, second homes, and second cars. This kind of property is considered the legal equivalent of a luxury item, and for that reason it can be garnished, taken by creditors, or subjected to a child support lien.
A lien holder is known as a "claimant" in Texas. A lien against property secures a claimant's debt, because the property owner can't just sell or dispose of it without paying back the amount owed to the claimant. Liens attach to property, not people. The claimant holds an interest in the property equal to the amount of money owed by the property owner, and can foreclose on that interest.
A lien must be "perfected" to be valid (see below). This means that the claimant must establish priority over anyone else who might also have a claim on the property by giving them proper notice.
Under Texas law, it's possible to obtain a lien for unpaid child support. There are four kinds of people and/or entities that can pursue a lien for unpaid child support and become formal claimants, including:
Texas child support liens can be filed against an obligor's real or personal property, in the amount of any child support that is "due and owing" (e.g., the total amount of child support plus accrued interest, whether it's been awarded by a court or not). It's important to know that any amounts—even accrued interest—are considered due and owing even if a court has not issued a judgment stating so. What matters is that the obligee could have taken the obligor through the legal process and obtained a judgment, because the amount was "presently enforceable" (meaning, supported by the law so that the obligee is entitled to use legal processes like court hearings or revenue recapture to recoup the money).
The State of Texas actively enforces child support liens that originate in other states. If you've moved to Texas and you're concerned about a child support lien you left behind in another state, you should contact the Texas Attorney General's office immediately for further assistance. The Texas Attorney General and the Texas courts will enforce child support liens from other states with the same force and authority as liens against property located in Texas.
If you're an obligor and you're concerned about a lien being filed against your wages, you should know that Texas law protects obligors. Obligees are not allowed to send liens to employers or attach them to disposable earnings. Self-employed obligors enjoy similar protections.
If you're an obligee, you don't necessarily have to go to court to perfect your lien. A child support lien arises without any court action, as long as "notice" is proper. The notice is the legal paperwork that must be filed to establish why the obligor's lien is valid and complies with state law. The obligee does not need to go to court and can simply file the notice with the clerk of court in any of the following counties:
A child support lien notice may also be delivered to a financial institution if the obligor has a bank account there. The bank must supply the obligee with the obligor's last known address and notify anyone else with an interest in the account about the lien, such as a joint account holder. The bank will then freeze the account in the amount of the lien.
To perfect the lien, the lien notice must
contain many different elements, each of which must be precisely stated
or the lien won't be effective. To ensure that your notice contains all
the required elements, be sure to check the Texas Family Code, section 157.313.
This area of the law can be very technical and a bit complicated; if you want to collect delinquent child support payments with a lien against property, you should contact an experienced family law attorney for help pursuing and perfecting a child support lien.
A child support lien filed against real property always has priority over any liens that are filed later. However, a child support lien does not necessarily have priority over liens that have already been filed. If you are an obligee and you have a child support lien against the obligor's property, but another lien preceded (came before) yours, you should contact an attorney right away to discuss this potentially complicated situation.