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My ex quit his job and now says he doesn’t owe child support. That can’t be right, can it?
Generally speaking, a child support obligor must pay 20% of his or her monthly net resources to the child support obligee for one child and 5% more for each additional child up to 40%. See Tex. Fam. Code § 154.125(b).
I say generally because a lot of factors can influence how these guidelines are applied, such as the child’s age and needs; the parents’ ability to contribute including the resources or employee benefits of both parents; childcare, healthcare, and certain educational expenses; whether there are other children not covered by the child support obligation to consider; if there is alimony or spousal maintenance being paid or received; the periods of possession of each parent and any cost of travel required to reach the child; and “any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.” Id. at § 154.123(b).
So what happens if a parent is unemployed? What is 20% of nothing?
First, it should be noted that the guidelines don’t say that child support is to be 20% of an obligor’s income from employment. The guidelines are to be applied to the obligor’s “net resources.” Id. at § 154.125(b). There are other resources that the court can look to, such as interest, rental income, capital gains, social security benefits, unemployment benefits, disability benefits, worker’s compensation, severance pay. Id. at 154.062(b). In short, if the child support obligor doesn’t get a paycheck, resources for the purposes of child support may include “all other income actually being received.” Id.
Additionally, the court may consider whether the obligor is intentionally unemployed or underemployed. “A parent who is qualified to obtain gainful employment cannot evade his or her child support obligation by voluntarily remaining unemployed or underemployed.” Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011). The Family Code allows a court to apply the child support guidelines to the obligor’s earning potential of an intentionally unemployed or underemployed obligor “[i]f the actual income of the obligor is significantly less than what the obligor could earn.” Tex. Fam. Code § 154.006(a). Note that “there is nothing in the statute requiring further proof of the motive or purpose behind the unemployment or underemployment.” Iliff, 339 S.W.3d at 80. Thus an obligee need not prove that the obligor is keeping him- or herself unemployed in order to avoid paying child support before the guidelines can be applied to the obligor’s earning potential.
However, this provision isn’t mandatory, and a court won’t apply the child support guidelines to earning potential in every situation when an obligor has a decrease in income, even if that reduced income is by choice. Rather, “[t]rial courts should be cautious of setting child support based on earning potential in every case where an obligor makes less money than he or she has in the past.” Id. at 82. The Texas Supreme Court refused to decide that “other things being equal, receiving more child support will always be in the best interest of the child.” Id. For example, a parent may work fewer hours in order to spend more time with a child. That time spent together with the child may be more in the child’s best interest than a few more dollars a month.
Therefore setting child support may not always be strictly a financial analysis. Id. The decision whether or not to apply the guidelines to an obligor’s earning potential should instead balance the parent’s legal duty to support his or her children and “a parent’s right to pursue his or her own happiness.” Id. Trial courts should consider “laudable intentions by obligors who alter their employment situations to spend more time with their children, to live closer to their children in order to attend their events and be more involved in their lives, or to provide their children with better health benefits.” Id. Additionally, the trial could should consider the personal or professional goals of the obligor “such as whether an obligor alters his or her employment situation to start a new business, to gain further education, to become a public servant, or to address health needs.” Id. Finally, the court should consider the job market and whether the obligor is unemployed despite “[a]n active but unfruitful pursuit of employment.” Id.
In Reddick, for example, the child support obligor sold his company as business declined in part due to Hurricane Ike. Reddick v. Reddick, 450 S.W.3d 182 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Despite his subsequent job hunt, his income decreased from nearly $100,000 a year to $4,500. Id. The court determined that applying the guidelines to his earning potential was inappropriate , reasoning that there was no evidence of “missed opportunities” or that the obligor had made “deliberate choices  to remain unemployed.” Id. at 190.
By contrast, in Iliff, the child support obligor had a B.S. and an M.B.A., quit his job, and “spent most of his time reading and watching television.” Iliff, 339 S.W.3d at 82. Because there was “little evidence that [the obligor] actively sought other comparable employment after his tractor business foundered,”the trial court was free to apply the child support guidelines to the obligor’s earning potential. Id. at 83.