Texas Child Support Based on Earning Potential when Parent is Underemployed

Parents have a duty to support their minor children and generally cannot avoid that duty through intentional unemployment or underemployment.  If a Texas divorce court finds a parent is intentionally unemployed or underemployed, it may consider that party’s earning potential instead of his or her actual income in determining child support.

A mother recently appealed a trial court’s finding that she was intentionally underemployed.  The parents reached a mediated settlement agreement on all issues except child support.  After a bench trial, the court ordered the father to pay child support for five months. There were some circumstances under which the child support could end earlier, and after the five months passed, there was to be no child support paid by either parent.

The court provided the reasons it varied from the guidelines in its findings of fact.  It found the parties had agreed to having the children for equal amounts of time.  The father had been found to be disabled.  He received disability income, and his health issues prevented him from earning additional income.  The mother had two degrees and could work as a licensed school teacher.  She had not presented evidence of disability nor a physical handicap that would keep her from earning additional income.  The mother had been awarded the marital residence and newer vehicle.  The father had to seek new housing to get equal visitation with the children as well as obtain another vehicle.  The trial court found the mother was underemployed and could have resources comparable to those of the father.

The mother appealed, arguing the trial court abused its discretion in not ordering further child support.  She also argued there was insufficient evidence to support a finding of intentional unemployment.

The mother testified she worked 30 to 40 hours a week at a daycare, earning an hourly wage of $12.00.  The evidence showed she had a bachelor’s degree in early childhood education and an expired teaching license.  She testified she had not worked after the birth of the children, who were 7 and 13 at the time of the trial.  She was asked if anything prevented her from renewing her license and said she did not think being a lead classroom teacher was her “path goal,” but she could get licensed and seek a lead teaching position if necessary.

The appeals court found the trial court had not abused its discretion in finding the mother was intentionally underemployed and her potential resources were comparable to the father’s.  There was sufficient evidence to support such a finding.  Because the parties had equal possession of the children and comparable earning potential, the court did not abuse its discretion in not requiring further child support.  The appeals court affirmed the divorce decree.

In a case where one parent is unemployed or not employed to his or her apparent potential, that parent should consider presenting any evidence that would show he or she is not intentionally unemployed or underemployed.  If you are facing divorce, a skilled Texas child support attorney will fight for a fair child support and custody arrangement for you.  Call McClure Law Group at 214.692.8200 to schedule an appointment.

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