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Attorney at Law 555 Republic Drive, Suite 200 Plano, TX 75074 (972) 516-4243 FAX: (877) 527-8913 Family Law/Civil Litigation Practice in Dallas County and Collin County (Texas)
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Attorney at Law 555 Republic Drive, Suite 200 Plano, TX 75074 (972) 516-4243 FAX: (877) 527-8913 Family Law/Civil Litigation Practice in Dallas County and Collin County (Texas)
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NO.
Absolutely not. Section 231.109(d) of the Texas Family Code says, "An attorney employed to provide Title IV-D services [i.e., one of the AG's attorneys] represents the interest of the state and not the interest of any other party."
Why is that important? For one very special reason: if they screw up your case, you can't sue them for malpractice.
Can you sue an attorney for malpractice? YES. But only if he legally represents YOU.
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Each lawyer employed by the AG is responsible for approximately 5,000 cases. An office that has 20,000 files will have four lawyers, and a staff of about 28 non-lawyers. They divide the work load based on the alphabet - based on your last name - A-F, G-N, O-T, U-Z, for instance.
1. You start your case with the AG by putting in an application. There is no charge to you for their services.
2. They first open a file and then verify the address of the Dad (the fellow whom you want to pay child support). This takes a week or two.
3. Next, a non-lawyer prepares a pleading to be filed with the Court. Figure at least another week.
4. Then your file goes to one of the lawyers where it sits on his desk for at least another two weeks. A few years ago, the AG office in Tyler had files sitting around with unsigned pleadings in them for six months. The pleadings were ready to go ... all they needed was a lawyer's signature.
5. After the legal pleading/petition is signed by one of their lawyers, it gets filed with the Court. Figure another few days.
6. Finally, the citation is issued and sent to the Constables for service. After another six weeks, you'll have your first hearing.
Finally, You're In Court !
9. The AG handles their Court dockets on a "cattle call" basis. They have, in the recent past, had dockets of over 100 cases that are all set for the same time on the same date in the same courtroom. You'll receive a letter telling you to come to Court, without regard to whether or not the Dad has been served. If it's a Dallas case, you may drive downtown, spend $10.00 on parking, and sit around in a crowded courtroom for hours, only to be told that Dad wasn't served, so they can't proceed today. Sorry about that; we'll reset your case, we'll let you know when to come back.
In fact, even if Dad has been served, the law says he has 21 days to file an answer. If you come to Court, and Dad has been served, and the requisite amount of time hasn't passed, guess what? Wasted trip. See you next month.
The system operates for their convenience, not yours.
One benefit of having the AG involved is that they have access to some powerful "tools" for enforcement that aren't available to a private lawyer. � For instance, there's a program called "FIDM" (Financial Information Data Match) whereby the banks report account information to the AG (ever noticed that when you open a checking account, they get your Social Security number?). The AG checks this account balance information against the Social Security numbers of non-paying Dads, and then they grab whatever money is in his checking account.
The AG also has access to TWC (Texas Workforce Commission, formerly known as the Texas Employment Commission) records, so that they can sometimes find out about Dad's new job long before anyone else does. If they know where he works, they know where they can garnish his wages.
The AG can also grab Dad's income tax refund and apply it to his child support arrearage.
The AG can send an Administrative Income Withholding writ (AIWH) to Dad's employer and immediately begin taking out extra money for a child support arrearage - they don't even have to get prior approval from a Judge.
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The AG hearings (99% of them) are held before a Master. He isn't an elected Judge; he's appointed. Because of this, you can appeal his decision any time within three days after the final hearing (section 201.015 of the Texas Family Code). The weekend days are counted!
NOTE: If a District Judge "sits in" for the IV-D Master, and HE hears your case, then you do NOT get the "quickie" appeal!
So How Do I Do a Three-Day Appeal?
You have to do three things: (1) create a Notice of Appeal and (2) file it with the District Clerk and (3) mail copies (or fax them, or hand-deliver them) to the Dad and the AG.
Remember that there are THREE parties in your case:
1. You
2. The Dad
3. The State of Texas (represented by the Attorney General)
You may disagree with the Master's ruling because he didn't hold the Dad in contempt; or because he DID hold him in contempt but didn't put him in jail; or because he made a finding of an arrearage amount that you think is incorrect; or because he set the monthly payback amount too low; or because (in a paternity case) you wanted retroactive child support, and it was denied, or it was granted in an amount that's too small; or because the Master set child support too low (you KNOW the Dad is making lots of money, but he lied in Court about it); or because the Judge allowed too much visitation for your bum jailbird alcoholic ex-husband. FILE AN APPEAL. You do NOT need the Attorney General's permission to do this! Remember, they don't represent you. YOU are a party; DAD is a party; and the Attorney General is a party (with its own agenda, which may not be the same as yours).
Any party can file a three-day appeal - you, Dad, or the Attorney General.
After the appeal is filed, the Real Court (the one with the elected Judge) will notify you by mail when the appeal hearing is set. When you get your hearing before the Real Judge, you get a second bite at the apple, so to speak (it's called "trial de novo"). You WILL have to go back to Court, but it will be in a different courtroom with a different Judge.
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The AG represents only the interests of the State of Texas (whatever that means). They don't represent you. It says so, right there in the Family Code
[section 231.109(d)];
you can look it up. When you get to Court, ask the AG lawyer if he represents you.
But you may not need to spend money to hire your own lawyer. If you do, plan to pay around $1,000.00 up front.
When you go to Court (and represent yourself), you'll sit down at a table (before the hearings start) with the AG and the Dad and you will "negotiate," that is, you'll attempt to settle the case without a full hearing. The Judge expects you to do this, because he doesn't have time to have a full evidentiary hearing on each and every case that's set that day (they always overbook). The AG will (generally) work to protect your interests even though they don't officially represent you.
Remember that you don't have to agree to ANYTHING. If somebody makes an offer that you don't like, one that doesn't pass the "smell" test, just say NO. Your case will then be heard (that day) by the IV-D Master, who will make a ruling based on the evidence. After you've sat and waited for another hour or two.
Remember that when you stand up in front of the Judge and represent yourself, he won't cut you any slack - all of the same rules that apply to the lawyers (hearsay objections, rules of admissibility of evidence, rules of procedure) apply to you also. Trial work is tricky, and there are many pitfalls; that's why law school takes three years, and the bar exam lasts three days.
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Dallas/Collin County area lawyers charge anywhere from $150.00 to $500.00 per hour. I charge $300.00 per hour, but I tend to bill conservatively. If I have to jump into an AG case, I'll usually get $1,000.00 up front.
Put in an
application with the AG. They'll help you out. They call this kind of case an "OPET" (Original Petition in Suit Affecting the Parent-Child Relationship). It simply asks the Court to order Dad to pay you money every month - it doesn't address the marriage, nor does it ask for a divorce. It asks only that a (a) child support order be established, and that (b) Dad get some Court-ordered visitation.
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No. They're not allowed to do that for you. As they will tell you, "It's not part of our mission."
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Let's say you already have a child support order in place. Dad is paying every month. Your kids come home from visitation one Sunday evening and tell you that Daddy has a new big-screen TV. And you notice the new pickup truck he's driving, which still has the dealer tag on it. In other words, you suspect that Dad has gotten a new job that pays a lot more money.
His child support of $261.00 per month was calculated (at the last hearing) based on his income at that time. His income is now higher. What should you do?
Put in an application with the AG. You want them to file a Motion for Modification of Child Support (their code is "MMOD").
A warning: if a MMOD is pending before the Court, and Dad shows up and proves that he's making LESS money than before, then the Judge could order that the child support be LOWERED. The AG files pleadings that simply say (1) circumstances have changed since the last order and (2) Dad's child support should be changed. It doesn't specifically ask that the child support be INCREASED. The AG uses standardized one-size-fits-all pleadings that are churned out by a document assembly program called "Alps" (which is operated by non-lawyers ... the AG clerks).
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YES. At an AG docket in Dallas on October 1, 2002, three men were put in jail for non-payment of child support ... all on the same day, out of the same Court.
But it doesn't happen often. Believe it or not, the IV-D Master gets a note from the Sheriff on the morning of your hearing letting him know how many beds are available that day in the jail. If it's "zero," then nobody is going to jail that day.
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A paternity case (the AG calls it an "establishment case," since its purpose is to establish a child support order) involves five main questions:
1. Is this man (the one named in the petition) the father of this child? Dad has the right to ask for DNA testing, and he doesn't even have to pay for it in advance.
2. (if he is the father) Should he get custody, or should YOU get custody? (yes, Dad has the right to ask for full custody. If he does, he probably won't win)
3. How much child support should he pay each month?
4. What kind of visitation should he get? Should it be restricted in any way?
5. How much retroactive child support (if any) should Dad be ordered to pay? After all, if he is found to be the child's father today, that means he was ALWAYS the child's father, and has had a duty to support the child all the way back to the child's birth but the Family Code says that there's a presumption that retroactive child support should go back only four years
(section 154.131, Texas Family Code). This retroactive amount draws interest at 6% per year.
6. (if retroactive child support is ordered) How much per month should Dad pay toward the retroactive child support (in addition to his regular child support)?
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1. Contact your local child support office or
2. try to apply online or
3. call 1-800-252-8014.
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The information on this website is not legal advice, and it may not be applicable to any specific set of facts ... especially your own personal situation. The perusal of this website does not establish an attorney-client relationship. Mark D. Dunn is an attorney licensed by the Supreme Court of Texas to practice law in all State courts and certain Federal courts, but is not board certified by the Texas Board of Legal Specialization. |