For the majority of people, the thought of being unemployed or underemployed is not something that people do on purpose. Quite often people in a position of being unemployed or underemployed were pushed into the situation due to an economic downturn. For example, in Texas, many workers in the lucrative oil field industry were laid off due to the recession. Workers across the nation also felt the sting of the downward economic spiral.
However, some instances do arise where a person chooses to be unemployed or underemployed in an effort to avoid paying the standard child support amount. The thought process behind the drive to be unemployed or underemployed is “you can’t get money that is not there”. Fortunately, Texas has a provision that allows a party to plead for intentional unemployment or underemployment.
Normally, courts use the actual income of the parent who is ordered to pay child support. However, in those instances where a parent decides to intentionally become underemployed or unemployed, the court can use the actual earning potential rather than the actual income when calculating the child support obligation. This type of provision allows the court to react to a situation where the parent attempts to game the system by intentionally lowering their monetary capability in an attempt to reduce their child support obligation.
The court will consider evidence from the parent who is presumed to be intentionally underemployed or unemployed. This includes some of the following change in employment situation:
1. to spend more time with the children;
2. due to a move to live closer to the children;
3. for better health care coverage for the children;
4. to start a new business;
5. to gain further education;
6. to become a public servant;
7. to address health needs.
The court has the latitude to consider the testimony and make the necessary determinations. If the court finds that the parent is intentionally underemployed or unemployed it will make a decision to base child support on earnings potential rather than actual earnings. Previously, courts used to make a parent prove the other parent was intentionally attempting to lower their child support obligation. In 2011, the Texas Supreme Court stated there is no requirement of proof that a parent be intentionally unemployed or underemployed for the purposes of avoiding child support. The Texas Supreme Court went on to say “Where a trial court determines that an obligor is intentionally unemployed or underemployed, it is in the court’s discretion to set child support based on earning potential.”
If you or anyone you know has questions pertaining to family law or wishes to have a free 30-minute consultation, please contact a lawyer, like a family lawyer Arlington TX can count on.support.