Demand for Child Support Payment

How does remarriage affect child support?

UPDATED: June 19, 2018

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When parents divorce, the non-custodial parent is usually obligated to pay child support to the custodial parent. In many cases, child support is calculated by adding both parent’s income together and applying a formula that is prescribed by state law. So what happens when the non-custodial parent remarries? Does the new spouse’s income affect the non-custodial parent’s child support obligation?

Generally, a new spouse’s income will not be used in child support calculations. Child support is the obligation of the parents themselves. Therefore, the non-custodial parent’s child support obligation will not change based upon remarriage alone. However, there are exceptions that may require child support to be modified.

One exception to this rule may apply when the non-custodial parent intentionally hides income to avoid a higher child support obligation. For example, if the parent paying child support arranges for his employer to make his weekly income payable to his new spouse, the court could base child support on the new spouse’s income. Another exception could arise when the custodial parent files a petition for modification of child support seeking an upward modification of child support. When a custodial parent is able to allege that there has been a substantial change in circumstances such as a decrease in his income or an increase in the non-custodial parent’s income, the court can recalculate child support.

When this recalculation is done, in some jurisdictions like Florida, the non-custodial parent can defend against the modification by alleging that she is unable to pay an increased amount of child support due to her financial responsibilities for children she had with her new spouse subsequent to the divorce. In those jurisdictions, the court would actually perform a calculation of what the non-custodial parent’s child support obligation would be to the new spouse should the new couple divorce.

In determining the non-custodial parent’s potential child support obligation to the current spouse, the court will likely take the new spouses income into account. When the court determines what the child support obligation to the new spouse would be, the court will subtract that amount from the non-custodial parent’s income available for paying child support.

Some states, like California, have legislation that will permit a new spouse’s income to factored into child support guidelines only “in an extraordinary case where excluding that income would lead to extreme hardship to any child subject to the child support award”. For example, if the non-custodial parent quit a job where he was making $60,000 per year to wait tables at a local restaurant, or where the non-custodial parent chooses not to work, living off the income of the new spouse, the custodial parent may be successful in getting the court to consider the new spouse’s income if she can prove that the non-custodial parent’s decision to take the lower paying job or not to work was based upon his reliance on his new spouse's income.

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