Some immigrants in the United States, whether here legally or not, do not have the legal right to work for a living in the U.S. However, a recent ruling by a Texas appellate court has held that when it comes to calculating the amount of monthly child support, not having a work permit is not an excuse.
Before exploring this issue, let's review how child support is calculated in Texas. The person responsible for paying child support is referred to as the "Obligor". The first step in calculating child support is figuring out the Obligor's "net monthly resources". Net resources is all income from all sources minus the following: return of principal or capital; accounts receivable; benefits paid under the Temporary Assistance for Needy Families program or other federal public assistance programs; payments for care of a foster child; social security taxes; federal income tax assuming one person claiming a personal exemption and standard deduction; union dues; cost of medical insurance or medical support for the child(ren) before the court; and non-discretionary retirement plan contributions if the Obligor doesn't pay social security taxes. Generally, the Obligor's net resources for the past year are calculated and then averaged to a monthly amount. If the Obligor's net monthly resources are less than $8,550, then the Obligor pays a percentage of his net monthly resources as child support. The amount of the percentage depends on the number of children before the court. For example, if the Obligor has to pay support for one child, then the Obligor's child support amount will be 20% of the Obligor's net monthly resources. It's 25% for two children and 30% for three children.
Now that we understand the basics of how child support is calculated in Texas, let's look at the facts in R.J. v. K.J., a case out of the Fort Worth appellate court. In this case, a family with one child moved to the U.S. from Pakistan and had another child here. The father lost his work visa status. The mother had obtained a temporary work visa. After losing his job, the father started receiving money from his family in Pakistan. He had received close to $300,000.00. At the divorce trial, the father testified that this money was a loan and that the only income he received was rental income. The trial court didn't buy the father's argument. The trial court held that the father was intentionally unemployed, that he had the ability to earn $50,000.00 a year and that his net monthly resources should be $4,000.00. The father was ordered to pay $1,000.00 a month in child support.
It's very common for immigrants, especially from South Asia, to receive money from family back home. The ruling in the R.J. v. K.J. case means that money sent from the homeland can now be considered as part of the recipient's income for the purposes of calculating child support. Who knows? Maybe the father in this case was being honest and the money was actually a loan. However, it looks like the father had no proof. The lesson is clear. If you are going to borrow money, even if it's from close family, have the appropriate paperwork to show a loan exists. In Texas, that means at least executing a promissory note.
Before we discuss the intentional unemployment aspect of this case, let's briefly review intentional unemployment as it relates to child support. As you can see from how child support is calculated, an Obligor's "net monthly resources" is the most important number for calculating child support. In the case of Obligors who are artificially trying to lower their net monthly resources, the Texas Family Code states, "If 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." Basically, this law means if an Obligor is purposefully making less money or not working, then the court can pretend as though that Obligor has a job and use that imaginary job's imaginary salary to calculate child support. For a more detailed explanation of intentional unemployment, please read our article Child Support and Intentional Unemployment.
The even more interesting and impactful aspect of the R.J. case for immigrants is that the trial court did not care that the father legally could not work in the United States. The trial court still found that the father was intentionally unemployed. In practical terms, this means that if you are an immigrant and you legally are not allowed to work in the U.S., you can still be considered to be intentionally unemployed by Texas family law courts. Because intentional unemployment requires a finding that the Obligor doesn't want to work or doesn't want to earn more, the R.J. ruling almost creates a presumption in a family law court that not having legal work status is completely the immigrant's fault and totally under the immigrant's control. In the R.J. case, it may have actually been the father's fault. The father had sued his employer and it appears the father's visa expired. However, in future cases where immigrants lose work status through no fault of their own, the ruling in the R.J. case will stand against them. It may even mean that if an immigrant cannot get legal work status, that immigrant will have to work illegally in order to pay their child support. In terms of the competing public policies of not having immigrants work illegally in the U.S. versus making sure children receive child support, the trial and appellate courts in the R.J. case sided with the children.