Will my new spouse’s income change my child support payment?
The income of a new spouse cannot be considered in modifying or calculating child support in divorce with 2 exceptions. First, in the extraordinary case where failure to include the new spouse’s income would lead to extreme and severe hardship to the children of the previous marriage. Second, the court may consider the new spouse’s income reported on a joint tax return when determining the actual tax liability in calculating the parent’s net disposable income available for child support.
(Hint – if you are paying child support and your former wife with custody marries a guy with high-income who pushes her into a higher tax bracket, her net income will decrease because she’ll be paying more in taxes. As a result, your child support payment may increase.)
The first exception to the general rule that a new spouse’s income is not considered in calculating child support is “the extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award.” (Family Code Section 4057.5).
What counts as an extraordinary case? It can include, but is not limited to, the situation where a parent intentionally quits work or reduces their income, or when a parent remains unemployed or underemployed and relies on their new spouse’s income. These examples of suppressing income after a new marriage are not exhaustive and the court is free to interpret other situations as constituting an “extraordinary case.”
Before the court can use the income of a new spouse in fixing child support, excluding the income of the new spouse must result in extreme and severe hardship to the children subject to the child support order. Moreover, even when excluding the income of a new spouse would lead to severe and extreme hardship to the children of the support order, the court must consider whether inclusion of that income would in turn lead to extreme and severe hardship to any children already supported by the new spouse.
The second exception to the general rule that a new spouse’s income will not be considered in calculating child support is the calculation of tax liability for disposable income. A new spouse’s income reported on a joint tax return is considered for the limited purpose of determining the parent’s actual tax liability in calculating their disposable income for child support.