A Rumor, a Reality Check, and What Texas Family Lawyers Actually Need to Know
I heard something in mediation last week from a lawyer whose judgment I respect – and it stopped me in my tracks.
She told me she had heard that the OAG is no longer accepting Affidavits of Direct Payment.
We both had the same reaction: “What? That can’t be right… can it?”
It sounded like one of those things that, if true, would matter – and if repeated without checking, would come back to haunt me.
So before letting that one make the rounds, I decided I better take a closer look.
As it turns out, the answer is more nuanced than the rumor, but equally important.
The Form Still Exists (So the Rumor Isn’t Quite Right)
As of now, the Texas Office of the Attorney General still uses what is now called the “Certification of Direct Payments” (formerly “Affidavit of Direct Payments”).
There has been no clearly published rule change eliminating the form.
So no, the OAG has not formally stopped “accepting” these documents.
But that turns out to be the wrong question.
Affidavit vs. Certification – A Quiet but Meaningful Shift
The older version of the form was an actual affidavit. It had the familiar notary jurat. It required notarization. It looked and felt like sworn evidence.
The current version is a certification. No notary. Same general content, but a different posture.
The change is subtle, but significant.
We’ve moved from something that resembles formal proof to something that functions more like administrative reporting.
And that distinction matters, because these forms are not grounded in the Texas Family Code. They are not statutory rights, and they do not guarantee that a credit will be recognized. They are administrative tools created and used by the OAG. At least on the administrative side, that means the OAG controls how it processes and responds to them.
What the Texas Family Code Actually Requires
When you step away from the forms and look at the statute, the framework becomes much clearer.
Texas Family Code § 154.004(a) provides:
“The court shall order the payment of child support, medical support, and dental support to the state disbursement unit as provided by Chapter 234.”
That is mandatory language. Not suggested. Not optional. Not flexible.
The statute requires that support be paid through the State Disbursement Unit. That is the system the law is built around.
Separately, Texas Family Code § 105.006(d) requires a final order that orders child support to contain a prominently displayed warning that failure to make payments in the place and manner required by the order may result in the party not receiving credit for making the payment.
Taken together, the statutory framework is straightforward: the law requires payment through the SDU and warns of the consequences of not following that requirement.
The Forms Don’t Override the Statute
This is where a lot of confusion arises.
Because the OAG provides a form, it creates the impression that there is a built-in mechanism to fix direct payments after the fact.
But the form does not override the statute.
The Certification of Direct Payments is simply a way for the OAG to gather information. It does not guarantee that payments will be credited. In practice, credit may depend on agreement between the parties or court approval.
In other words, completing the form is not the same thing as getting credit.
And the case law confirms it.
What the Case Law Says (And Why This Is Risky)
There is actually a Texas Supreme Court case on this issue – Ochsner v. Ochsner – and it helps explain why this area is so tricky.
In Ochsner, the Court held that in an enforcement proceeding, a trial court may consider direct payments made outside the registry when determining whether an obligor has satisfied a child support obligation.
But “may” is the operative word here.
The Court did not create a right to credit. It confirmed that the trial court has discretion to give a credit. And the Court cautioned that bypassing the registry can complicate things and create proof problems.
In other words, relying on direct payments is not a strategy – it’s a gamble.
And other provisions of the Family Code reinforce that point.
Under Texas Family Code § 157.263, the court is required to confirm the amount of arrearages, which involves determining what has actually been paid – not just what the registry reflects. Texas Family Code § 157.008(d) provides a narrow statutory affirmative defense in one specific circumstance, but Ochsner makes clear that those statutory offsets do not exhaust a trial court’s ability to consider direct payments in an enforcement proceeding. Even so, there is no broad right to credit for informal or undocumented payments.
Taken together, the framework is clear: credits for direct payments are not automatic, not guaranteed, and not freely granted – they are discretionary.
Put simply, Texas law does not guarantee credit for direct child support payments, but a trial court may, in its discretion, consider those payments when determining arrearages in an enforcement action.
Which brings us right back to the rumor – and why it exists.
Why the Rumor Exists (And What’s Actually Happening)
As part of looking into this, I spoke with an Assistant Attorney General who confirmed that there has been no formal policy change eliminating this form.
However, he did explain that his office is now enforcing what he described as a “two affidavit” rule:
- After the first certification is processed, the parties receive a written warning.
- If a second certification is submitted, the OAG may elect to close the case for non-cooperation.
That is not something you will find in the Family Code. But it is consistent with the statutory requirement that payments be made through the SDU.
This appears to reflect a shift in enforcement posture, not evidentiary standards. The issue is not whether the payments occurred – both an affidavit and a certification function as acknowledgment by the recipient – but whether the parties are complying with the SDU system. After the OAG warning, continued off-system payments may lead the OAG to decline further enforcement involvement.
If the statute requires payments through the SDU, and the parties repeatedly operate outside that system, the OAG can treat that as a failure to cooperate with the program.
And this may explain why some lawyers are experiencing increased resistance.
It’s not that the form has disappeared. It’s that it may not be accomplishing what people think it should.
Why This Matters in Mediation
This issue shows up in mediation more often than it should.
One party says: “I paid support directly.”
The other side says: “That’s not what the OAG record shows.”
And suddenly, what looked like a current support case becomes an arrearage case. Sometimes a significant one.
That is not a fun surprise to unpack at 3:30 in the afternoon.
The natural instinct is to assume the issue can be cleaned up later with an affidavit (now a certification). But that assumption deserves caution.
From a mediation standpoint, disputed direct payments should be treated as a risk allocation problem, not a paperwork problem. If you think it matters, it should be explicitly resolved in the mediated settlement agreement.
Not later. Not administratively. Not by hoping the form fixes it.
Practice Tips for Family Lawyers
- Advise clients to pay through the SDU. Every time. No exceptions. I understand there are situations – tight timelines, temporary orders, or early-stage cases – where direct payments seem easier. But those situations are exactly where problems tend to start. More often than not, you end up needing a Certification of Direct Payments anyway. It’s cleaner and safer to just go through the SDU from the outset.
- Get the Wage Withholding Order prepared, signed, and submitted to the SDU promptly. Delays in implementing withholding create unnecessary risk, and are often at the root of avoidable disputes.
- If direct payments have already occurred, document them immediately – but do not assume documentation guarantees credit.
- Encourage clients to maintain clear, contemporaneous records of any payments (checks, transfers, Venmo, etc.). If co-parenting tools like OFW are being used, consider uploading proof of payment there as an additional record.
- In mediation, address any direct-payment disputes head-on. Do not assume the OAG (or the Court) will fix it later.
- If the OAG is present at mediation, they can help confirm arrearages and credits at the SDU level. But they are not always involved, and are not always available.
- If the dollars are significant, negotiate the entry of an order confirming the agreed credit so the issue does not resurface later in an enforcement.
Bottom Line
The rumor isn’t exactly right – but it’s not entirely wrong either.
The OAG has not eliminated Affidavits or Certifications of Direct Payments.
But given the statutory requirement to pay through the SDU, and evolving enforcement practices, it is increasingly risky to rely on this form as a solution.
The form still exists. The perceived safety net it provides may not.
Closing Thoughts: Understanding the Risk – and Addressing It Early
Child support accounting issues have always been fertile ground for conflict. When you combine off-system payments with evolving administrative practices, those issues can quickly become expensive and unpredictable.
The key is not just understanding what the forms say – it’s understanding how these issues actually play out in real cases.
Having spent years on the family bench, I’ve seen payment disputes and unclear agreements turn into enforcement actions that could have been avoided with more precise drafting and clearer expectations at the outset. In mediation, the goal is to address those issues before they become problems.
If your case involves disputed child support payments, or any situation where the details matter, it’s worth ensuring that the mediated settlement agreement addresses it clearly and completely.
When these issues are handled correctly, cases resolve more cleanly and stay resolved.
If I can be helpful in that process, I’m always glad to work with you.
