How the Courts are Affecting the Parent-Child Relationship: Recent Opinions on Intentional Unemployment and Underemployment

Picture this scenario. You are in court during a divorce or child custody determination, and you are appointed primary conservator for the child. This means that the other parent is going to be responsible for paying child support. There’s just one issue–the other parent is unemployed or makes a lot less than they did before the case started. You may feel as if there is nothing that can be done. However, recent appellate opinions have created a solution to this often present dilemma and your attorney at Guest & Gray will be able to advise you on this.

In particular, this issue goes to when a court can apply the statutory child support guidelines to an obligor parent’s earning potential rather than their actual monthly net resources. Parents dealing with dead beat obligor parents, fret no longer. If the child’s father/mother has a high earning potential but then decides to quit his/her job or choose a job that pays significantly less, you no longer have to prove they are doing so to avoid child support payments. At least not as far as the Austin Court of Appeals is concerned. That is, in Iliff v. Iliff, the husband was intentionally unemployed–he quit is high paying job while the divorce was pending. Knowing this, the Court still ordered him to pay child support based upon his earning potential–what he was making at his highest point–rather than his actual earnings. However, as with all good news, there is a catch. This case went to the Texas Supreme Court where the justices did a little clarification. The Court agreed with the Austin Court of Appeals but stated it would be based upon a case-by-case determination. Thus, it will be based upon the evidence presented in each case–if the obligor puts on evidence of his wages and earnings, it then becomes the obligee parent’s burden to prove that the obligor parent can do better than that, he/she is just choosing not to. Meaning, you have to prove the Court’s definition of intent which is “conscious choice to remain unemployed or underemployed.” Then, of course, the burden shifts back to the obligor parent to prove that this isn’t true, that he/she is doing the best they can.

In the Illiff case, the trial courts are instructed to consider certain motivational factors of the obligor parent–why are they unemployed or underemployed. This brings to light that there are other ways besides money to support a child. These factors include quitting a job and getting a new one to be closer to your child and more involved in the child’s life or if there is a job with a better benefits package, it just pays less. So, obligor parents might have a way out to avoid this “earning potential” calculation after all. And finally, another catch, going back to what will the Court consider as being underemployed. According to the Texas Supreme Court, it means that the obligor parent is making “significantly less.” And, if it didn’t seem grey enough, what is significantly less is left to the imagination.

One final caveat, what if the obligor parent is incarcerated? What does this mean for child support. A Corpus Christi Court of Appeals treated this as intentional unemployment, In fact, that appellate court followed the Texas Supreme Court’s opinion and held in In the Matter of the Marriage of Lassman, that the obligor parent’s incarceration was intentional unemployment which would allow the trial court to deviate from the statutory guidelines and apply the percentage of support to his earning potential rather than his actual earnings. Therefore, when the obligor parent gets out of jail or prison, there will be arrearages. Seemingly, the appellate courts are going the extra mile to ensure that parents support their children.