Friday, February 15th 2008
Child Support and Remarriage
People frequently ask whether remarrying affects the amount of child support a person is required to pay to their former spouse. In other words, can a new partner’s income be included in the calculation of child support. Except in very narrow extraordinary circumstances, the answer is “no.”
At one time, courts would consider a new partner’s income to deviate upward from the child support formula used in California to the extent such income helped meet the parent’s basic living expenses or increased the parent’s disposable income. In other words, courts would increase the amount of child support a parent was required to pay after considering the parent’s new partner’s income.
Now, however, a parent’s new partner’s income cannot be directly considered by the court in the child support calculation except in very narrow “extraordinary” circumstances recognized by the Family Code. The Family Code provides that the income of the obligor’s new partner (i.e., the new partner of the parent paying child support) “shall not be considered when determining or modifying child support, except in an extraordinary case and severe hardship to any child subject to the child support award . . .” Cal. Fam. Code § 4057.5(a)(1) & (2). Thus, a court will only consider a parent’s new partner’s income in modifying child support if without such consideration the child will suffer “extreme and severe hardship.” Otherwise, such income cannot be considered.
So what constitutes an “extraordinary case?” Courts retain discretion to make that determination on a case-by-case basis. However, the Family Code lists two examples of an “extraordinary case” potentially warranting the Court’s consideration of a parent’s new partner’s income:
- A parent who voluntarily or intentionally quits work or reduces income. Cal. Fam. Code § 4057.5(b).
- A parent who intentionally remains unemployed or underemployed and relies on a “subsequent spouse’s” income. Cal. Fam. Code § 4057.5(b).
The above are not the only situations a Court can consider, and the Court may look to the income of a new partner only in order to prevent extreme and severe hardship to a supported child.
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