If you are in a position where paying child support appears likely as a result of your Texas divorce or child custodycase it could be that you would go to extreme lengths to “fudge” the numbers in an attempt to pay less child support.
You could have heard from friends, family or co-workers that the child support system is intended to make your life extremely difficult and now you will do anything to avoid getting involved. What happens if you do attempt to work fewer hours, outright quit your job or take any other measure to decrease your income?
In order for a court to determine that you are intentionally underemployed or unemployed your opposing party must be able to prove that doing so was for the express purpose lessening your obligation to pay child support.
Let’s look at an example to illustrate this point. For those of you wondering, take a look at the case Tenery v. Tenery, 955 S.W.2d 337 (Tex. App.-San Antonio 1997). Here, the father became unemployed just a few months before the finalization of his divorce case.
This was after a decade of consistent employment. With no income from work and no income available from other sources, the opposing party was concerned about their ability to find a base from which to calculate a child support total.
What did the opposing party do? Well, not much. It is not their burden or responsibility to prove what the earning potential of the opposing party is. Their only responsibility is to prove that their unemployment was due to a desire to avoid paying child support.
The court found that this burden was met and as a result, the appellate court ordered the father to pay a higher level of child support based not on a guidelines level of support but based on the expected earnings of the father. His plan to escape from the clutches of child support was not successful as a result.
How to show a court that your opposing party is purposefully underemployed or unemployed?
Suppose now that you are the parent who is due to receive child support as a result of your child custody or divorce case. You are in the midst of negotiations for child support when your opposing party presents documents showing that he is not working or is earning substantially less than he or she used to. Given these circumstances how should you go about proving your case and advocating your position on this important subject?
There is a three-step process that you and your attorney should look into.
- First of all- you will need to show a court that the unemployment is intentional and not as a result of circumstances beyond the control of the opposing party.
- Secondly- there must be actual intent to avoid paying child support by the actions of the opposing party. As anyone who is at all familiar with criminal law is concerned, proving intent can be awfully difficult.
- Third and lastly - it is not enough to simply opine that the opposing party is capable of earning more than he or she is currently.
Varying or fluctuating income
If you are in a field where your wages fluctuate at particular points of the year or just at random times, then you will need to know how to determine how income level in spite of this complicating factor.
In order to control for fluctuations in income, your court may choose to average your income out over several years in order to reach a number by which child support may be calculated from.
Guideline Child Support Levels
The Texas Family Code covers all of the laws that are used to govern the area of child support.
Whatever amount based on the guidelines set forth in the Texas Family Code is based on fairness and the best interests of the child.
How to deviate from the guideline levels of child support
Suppose that a court determines that allowing for an increase in child support is in the best interests of your child. How can your court get to that point where it is thought to be an overwhelmingly good decision to do so? I have represented a mother whose soon to be ex-spouse was abusive verbally and physically with their two children.
After a long and contentious case, it was determined that the net monthly resources of the father had decreased due to the length of this case and his own responsibilities to take time away from work. Was his child support responsibility lessened as a result of this?
The answer is no. The reason that the court provided us with was that due to his history of violence and abuse there was sufficient cause to deviate from the guideline levels of support as set forth in the Texas Family Code.
The judge found that if he were to award a lesser amount of child support this would be inappropriate given the circumstances. The children would likely require therapy that needed to be reflected in the child support order.
Bottom line is that your actions as a parent leading up to a divorce can weigh heavily in a fact finder’s mind when calculating child support. While there is no hard and fast rule on when a court will decide to deviate from the guideline levels of support it is likely when your bad actions have caused a decrease in income or otherwise harmed your family.
Additional circumstances that can lead to a deviation from guideline levels of child support to be discussed in tomorrow’s blog post
Please come back to our website tomorrow to learn more about child support levels and when a court may award lesser or greater amounts than what the Texas Family Code prescribes.
In the meantime, if you have questions about this subject or any other in family law please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. A licensed family law attorney is ready and willing to answer your questions in a free of charge consultation.
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Other Articles you may be interested in:
- How to properly calculate child support in Texas
- Is Overtime Pay or Bonus Pay Considered for Texas Child Support?
- Child Support in Texas: What is the most you will have to pay and what are the exceptions to that rule?
- The Dirty Trick of Quitting Your Job to Avoid Child Support During a Texas Divorce
- Can I get child support while my Texas divorce is pending?
- Do I Have to Pay Child Support if I Have Joint Custody of My Child in Texas?
- Can I Sue My Ex for Retroactive or Back Child Support in Texas?
- Child Support and College Tuition in Texas
- Texas Child Support Appeals
- In Texas are Child Support and Visitation Connected?
- Why Ignoring Child Support Obligations is a Bad Idea in Texas
- Can I get child support and custody of my kids in Texas if we were never married?
Law Office of Bryan Fagan, PLLC | Houston, Texas Child Support Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding child support, it's important to speak with one of our Houston, TX child support lawyers right away to protect your rights.
Our child support lawyers in HoustonTX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles child support cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.