Written by Aaron R. Winston
Last Updated: May 15, 2023 6:26pm CDT
Personal injury cases are not a pleasant experience since, as the name implies, it requires you to have suffered an injury to file one.
However, once the injury claim has been filed, you have the potential to reap a fair compensation amount that can even result in a small financial windfall. Of course, it’s never that simple with any legal process.
Child support is ongoing and periodic payments are made by a parent for the financial benefit of a child. If the injured parent responsible for the child support is up to date on the payments, they do not have to worry as long as they keep making them.
However, that is often not the case, as parents can have liens on them for unpaid child support. This brings concern that a party might garnish your settlement to repay child support. However, there is an additional concern for those of us who have children with individuals who are no longer our partners.
After suffering a severe injury and dealing with stressful court cases and medical costs, the last thing you likely want to think about is the contentious but vital topic of child support. With this article, we hope to clarify whether or not your injury settlement will be drained for child support obligations.
How Does Child Support Work?
If you pay child support, you likely already have a good grasp of what it means. However, insofar as the letter of the law is concerned, those are the details that matter.
As a non-custodial parent, the child support process is your way of contributing to child-rearing costs that you cannot provide due to no longer sharing finances with your former partner or raising the child yourself.
The amount paid is generally static and takes the non-custodial parent’s income into account before a sum is declared.
However, there are factors that exist and are used to determine what a fair sum for the child support payments to be.
Regardless of the sum being paid, the frequency of payments is generally just as regular as the amount expected. The court will determine whether child support is to be paid weekly, bi-weekly, bi-monthly, or monthly. Monthly payments are the most common.
This schedule means that you will not have to pay any more frequently if you are consistent with your child support payments.
Calculating the required amount of money for child support and how the other party will secure those funds is relatively straightforward.
Child support is not automatically taken from paychecks by default. The non-custodial parent is expected to use the available funds and pay the support, much like how one would pay monthly payments for a car or apartment.
The only exception is paying back child support, but we will cover more on that topic later in the article.
Now that we have a firm outline of the amount of child support and the payment structure, which we know you likely already understand, we can consider the main question.
Can Child Support Take Your Personal Injury Settlement Money?
A personal injury settlement is the agreed-upon sum given to the victims of a personal injury accident to help meet the financial cost of treatment and compensate for damages. With car and truck accidents, the settlement is typically between the injured victim and the liable insurance company.
As a result, virtually nothing can touch the sum unless you intend to allocate some funds toward paying for something.
Even your medical providers cannot force you to use those funds to pay them off, and as a general rule, personal injury settlements are tax-exempt.
So, in the question of whether or not you can deduct child support from your settlement amount and whether these funds are considered income, the answer is generally “no.”
No regulations force you to use your personal injury settlement gains to pay your monthly child support payments if you are up to date on those payments.
If your award amount serves as the sole source of funds you have to make your payments, it is better to use it for that purpose. However, no one can force the issue.
This liberty, however, is not absolute as it is predicated on you having paid your child support order regularly and being in good standing in the eyes of the law.
For example, your former partner cannot hear of your settlement and demand a portion of it to use as child support if you are up to date on payments.
Since you have fulfilled your child support obligations to this point and personal injury settlements are not a form of reliable income, they cannot be considered for the renegotiation of child support agreements.
That said, falling behind in your child support payments means child support can take your settlement money to pay for the back pay you still owe them. That is how arrears and garnishing your settlement check come into play.
Child Support Arrears Affect What You Keep of Your Settlement
Child support arrears are just a legalese way of referring to child support that has gone unpaid, and you are financially responsible for paying.
While those who have successfully maintained their child support payments are not expected to surrender percentages of their injury settlements to pay it off, those who have incurred these arrears are in a much different boat.
If you have allowed yourself to fall behind on your child support payments, you run the risk of having your finances examined more closely to make the payments more regular.
Garnishment is a well-known concept between law firms and the legal world. Traditionally, it applies to your regular income having outstanding balances deducted from your paychecks.
However, the states have laws addressing how child support can place a lien on your personal injury settlement check.
That includes how much of your settlement they can take due to your owing money to child support for your not making the payments the court said you are responsible for.
How Much Can Child Support Take From Your Settlement?
Depending on the state’s laws where you owe child support payments, child support service can take your entire settlement check.
For instance, in Oklahoma, child support services will pay your personal injury attorney their fee and the hospital systems for the cost of your medical bills before they take whatever is left (So if you owe more money to child support than you got in your settlement, they can garnish it all.)
Unfortunately, I can attest to how we at Express Legal Funding have versions of child support garnishments unfold firsthand in states like Georgia, Oklahoma, and Texas, to name a few.
Child support is one of the costs that can cause your income to be reduced to have you pay off the overdue balance you owe, and the same applies when it comes to legally-awarded funds like personal injury settlements.
The reality is that many states are more than happy to garnish your settlement and redirect it toward paying for child support payments you have not kept up with.
While your settlement is designed to serve as your remuneration, it becomes subject to regulation if you do not meet your legal obligations. In extreme cases, your settlement has a lien placed on it that prevents you from accessing the funds until your child support payments are up to date.
As we said, these measures will vary depending on the state you live in, so you might not have to worry about your settlement being garnished for child support.
The goal of the garnishment is to see the child support repaid in full, so they will not drain the entire settlement if a portion is earmarked for your medical treatments. The garnished amount will depend on how much is needed to pay for your medical bills and the remaining funds.
While arrears can cause you to lose out on your settlement money, reaching out to your former partner and attempting to negotiate the sum owed and the overall cost of your child support obligations in the long term is possible.
However, these kinds of measures are best pursued with the assistance of an attorney or law firm to ensure the best results.
Can You Stop Child Support Garnishment?
The answer to whether you can stop child support garnishment of your settlement is a tentative yes. Even when it is possible to stop garnishment, there are a lot of strings attached.
If you’ve neglected to pay your child support, child support enforcement may impose a child support lien that requires your bank accounts to be garnished.
Child support garnishment is almost always justifiable and fair. The government has been filling in for you and the payments you are responsible for making.
It is doing your job by financially supporting your child in your place.
If your settlement is being withheld due to past-due child support, you might be curious to see if you can take any methods to fight child support garnishment and arrears and get them dismissed. Can you have the liens placed on you dismissed?
How to Get Child Support Arrears Dismissed?
Specifically, the only way to protest garnishment and get child support arrears dismissed is to file for a court hearing. If the hearing is approved, it should occur quickly.
However, the odds of your getting child support arrears dismissed are not likely since the objections you can make are minimal and designed to combat wage garnishment rather than settlement money.
The first point you can make is that the arrear amount you are accused of owing is incorrect, and you are being expected to pay more than you should. It needs to be taken seriously if this is the case since the child support sum is carefully calculated.
You Will Need Proof the Garnishment Amount is Wrong
However, you will need proof that the amount is erroneous, and failing to provide compelling evidence will shoot this objection down quickly.
The next consideration is that the amount you are being charged will make it impossible to survive. Again, this is more oriented toward wage garnishment since settlements are not a primary income source.
However, it might be possible to claim that the amount they intend to garnish could make paying your medical costs impossible and mitigate the amount withheld.
Some states will allow a more intense and combative objection to the garnishment. Specifically, they might allow you to claim that the reason for the arrear was due to your former partner withholding your child and preventing you from being able to see them.
You should note that the premise of child support and custody agreements are separate matters, and one does not entitle you to withhold the other.
However, it might serve to deal with the garnishment and repair any custody disputes in some instances.
The final objection that might be possible for you to address is a conflict in custody at the time the arrear alleges you failed to pay.
If You Were the Custodial Parent
If, for whatever reason, the arrear manifested at a time when you were the child’s custodial parent, it is possible to have the sum dismissed. Since, as the custodial parent, your ex-partner or spouse would have to be the one paying child support instead of you.
According to the custody agreement, this defense is extremely niche and only applicable if you were the custodial parent and not simply having your kid visit.
In any case, it’s in your best interest to discuss this with both your personal injury lawyer and your family law attorney. If you haven’t already retained counsel and an attorney-client relationship, it would be best if you started that process early for individualized legal advice.
You may require both a personal injury attorney and a family law attorney for your child support case; personal injury law and family law are two very different practices requiring distinct legal support.
Other Factors to Consider About a Personal Injury Settlement
While having your settlement funds garnished to pay back support is a concern, other factors might dictate how a settlement is dispersed. Specifically, it would help if you addressed whether or not your child was involved in the accident that caused the injury.
If your child or children were involved and were injured in a car accident, for example, then a settlement would be negotiated that allows you to tend to the costs of their medical care as well.
The settlement for your child’s injuries will be a separate balance from the one allocated to your needs. As a result, any child support arrears you have pending will only be drawn from the settlement legally registered to you.
We know we have already expressed that the laws on whether or not another party can garnish your injury settlement will have rules varying by state. However, knowing your state’s specific laws is an essential step in understanding how things will play out for you.
For example, in Texas, the law enables all forms of income, like personal injury settlements, to be garnished to compensate for arrears.
However, with there being 50 states in the country, we cannot list the details of every state’s policy, although the same concepts generally apply.
We encourage you to review your state’s child support laws and arrears or consult with an attorney if you want more information. Either way, it will afford you the knowledge you need to understand how such cases will affect your settlement.
Closing Statements on Settlements and Child Support Debt
Child support is not something to neglect or take lightly, as failing to uphold your parental responsibilities brings a hefty cost. Even when you have suffered grievous injury, you are not exempt from fulfilling your child support obligations.
While your injury settlement sum will only be subjected to a lien if you owe back support, it is still subject to such policies. However, we know that a personal injury claim and working with a car accident attorney is not exactly an easy thing to handle.
Personal injury claims combined with child support payments can make managing your day-to-day living expenses very difficult. Between making your payments to your former partner, tending to your medical costs, and paying for standard necessities like rent or power, you can find yourself in a sea of expenses.
Fortunately, with help, there can be a financial life raft in the ocean of costs. At Express Legal Funding, we offer our service by advancing plaintiffs pre-settlement funding money for necessary expenses like rent and bills that only is repaid with settlement or trial award money at the end of a case.
While you cannot allocate the funds to pay for your attorney fees or case expenses, you can use the money as the financial support you need. It can help you make child support payments without getting behind on bills and losing power for the a/c and lights in your home.
The best part about pre-settlement funding is that it’s risk-free and the same as a pre-settlement loan. We can only expect to get paid what we are owed from your settlement or personal injury award.
As so often is said about non-recourse legal funding, if you lose your case, you owe us nothing.
So, please call us today for substantial assistance when you need it most through a helpful and free consultation to help you learn more about lawsuit funding and whether it is the best option for you. We will answer your call anytime, 24/7.
About the Author
Aaron Winston is the Strategy Director of Express Legal Funding. As "The Legal Funding Expert," Aaron has more than ten years of experience in the consumer finance industry. Most of which was as a consultant to a top financial advisory firm, managing 400+ million USD in client wealth. He is recognized as an expert author and researcher across multiple SEO industries.
Aaron Winston earned his title "The Legal Funding Expert" through authoritative articles and blog posts about legal funding. He specializes in expert content writing for pre-settlement funding and law firm blogs.
Each month, tens of thousands of web visitors read his articles and posts. Aaron's thoroughly researched guides are among the most-read lawsuit funding articles over the past year.
As Strategy Director of Express Legal Funding, Aaron has devoted thousands of hours to advocating for the consumer. His "it factor" is that he is a tireless and inventive thought leader who has made great strides by conveying his legal knowledge and diverse expertise to the public. More clients and lawyers understand the facts about pre-settlement funding because of Aaron's legal and financial service SEO mastery.
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Aaron's company slogans and lawsuit funding company name are registered trademarks of the United States Patent and Trademark Office. He has gained positive notoriety via interviews and case studies, which are a byproduct of his successes. Aaron R. Winston was featured in a smith.ai interview (2021) and a company growth case study (2022).
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Aaron was born in Lubbock, TX, where he spent the first eight years of his life. Aaron attended Akiba Academy of Dallas, TX.