The Texas Supreme Court has revisited statutory standard for determining when a parent is unemployed or underemployed for purposes of determining child support obligations.

Section 154.066 of the Texas Family Code provides that "[i]f the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor."  Most courts of appeals have required proof that the obligor was intentionally unemployed or underemployed for the purpose of avoiding child support.  This requirement appeared to have dealt with the spouse who was unemployed or underemployed for reasons quite independent from child support obligations.  This test has been discarded.

The Supreme Court observed that the phrase "for the purpose of avoiding child support" does not appear in the statutory language at all.  There is no intent element.  Therefore,  the court held, "there is nothing in the statute requiring further proof of the motive or purpose behind the unemployment or underemployment."  But never fear, the Court goes on to note that the statute includes the word "may" in it, which affords discretion in the trial court within the limits of the circumstances of the case to consider whether the obligor is attempting to avoid child support by becoming or remaining unemployed or underemployed.  The court offers up some shifting burdens of proof in this regard, while pointing out that the discretion afforded requires examination of laudable reasons for intentional unemployment or underemployment such as spending time with the children, living closer to the children, or providing the children with better health benefits.  Further, the Court points out that there must be a "significant" difference resulting from the underemployment or unemployment before the guidelines are triggered.  Thus, it appears that unemployment or underemployment will not automatically trigger application of the child support guidelines.  The Court’s opinion in Iliff v. Iliff may be found here.