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.