Is money received by my ex-spouse from his mother included as income in determining spousal support?
UPDATED: July 31, 2017
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Generally speaking, if the ex-spouse is steadily or regularly given money and support by his mother, all (or at least some of it) will likely be considered income for divorce and spousal support purposes. The law does not let people get out of their obligations simply by having another person pay their expenses or an "allowance" and/or by putting or keeping assets in another's name. That being said, certain factors may change the characterization of mom’s gifts. For example, how regular and reliable are the transactions? For how long has she been helping him? Is the support in the form of money, or in other forms that are harder to track, like groceries or entertainment? Unreliable or short-term gifts of money may not qualify as “income,” and non-monetary gifts that are hard to track also may not qualify as income.
The law generally looks to the reality of a situation, and not to its surface appearance. It also tries—admittedly, not always successfully—to achieve “equity,” or come to results that are fair or just as well as being legally correct. What this means in the context of divorce is that the law may consider the money your ex-spouse receives from his mother as part of his income for purposes of awarding spousal support. The fact that he receives support from his mother (i.e., it’s his mother’s money paying for him) does not automatically exclude these funds from consideration. But at the same time, it is also not certain that they will be included as part of his income—it depends on the situation.
First, regular support is much more likely to be considered as part of his income than a one-time, occasional, or sporadic gift. That’s because a one-time or occasional windfall is not predictable or reliable, and so the court could not determine what he will receive in the future. Not being able to determine what he will get in the future, it would be difficult and unfair to include this as part of his income. After all, if you are awarded more support based on a one-time or occasional gift that he receives, and that gift does not regularly repeat, he may be left having to pay more than he can actually afford to pay.
Second, how long has she been supporting him? If she has been doing it for years, that backs treating the support as income. There is a “track record” or history that shows that it is likely to continue for the simple reason that it has already been going on for a significant period of time. But if she only just started supporting him, it becomes much harder to, with any confidence, say that the support will continue. There is insufficient evidence to conclude that.
Third, a more pragmatic concern: if the mother is buying things for him and those are things which don’t leave much of a “paper trail” or are unexpected (e.g., you would not necessarily look to see who is paying for them), such as, for example. buying groceries for him; paying for his “entertainment” expenses; giving him cash spending money; etc., you may have difficulty determining or proving these amounts. This will limit your ability to include them as his income.
Fourth, only those amounts mom probably does provide for him might be counted, not her total income or assets. She could be worth millions, but if she only gives him $10,000 - $20,000 per year to supplement his income, only that $10k or $20k will be considered (at most).
Finally, remember that it’s not just his economics that affect what support (if any) you will get. It’s the comparison of your economics and his. If you have a steady, good job, and meanwhile, his mother is supporting him because he is out of work, or doesn’t earn enough on his own (without your income) to pay his way, then even if her contributions were counted, you may get little (if any) support. Even with her help, he may not be in a position to pay support, or you may be doing better than him.
To conclude, the mother’s contributions—or at least part of them—may be counted as his income for these purposes. But whether they, in fact, are and, if so, how much is considered part of his income, will depend on the circumstances.