Affirmative Defense To Motion For Enforcement Of Child Support

Under Texas Family Code Section 157.008, there are affirmative defenses that you can raise in your Answer when you face an allegation of contempt.

TFC 157.008 States:

(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) An obligor may plead as an affirmative defense to an allegation of contempt or of the violation of a condition of community service requiring payment of child support that the obligor:

1. lacked the ability to provide support in the amount ordered;
2. lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
3. attempted unsuccessfully to borrow the funds needed; and
4. knew of no source from which the money could have been borrowed or legally obtained.

(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.

Definition:

• Obligor is the parent ordered to pay child support; this is generally the non-custodial parent.
• Obligee is the parent receiving the child support; this is generally the custodial parent.