Family law litigants often ask their attorneys whether it is possible to include “new spouse” income when calculating child support. In other words, Dad wants Mom to include the income of her new spouse (step-father) when calculating the child support. Can the court really do that? It depends.
Worried About Child Support?
Get Clear Answers About Support for Your Child
Child support can feel personal and stressful, especially when new relationships, new households, and changing incomes are part of the picture. The attorneys at Pakpour Banks LLP will listen to your situation, explain your options in plain language, and help you decide what to do next.
Schedule a Free ConsultationThe Basis for Including New Spouse Income
Let’s start with the basics. Child support in California is determined using a guideline formula that takes into account three primary factors: father’s income, mother’s income, and the percentage of time the child spends with each parent.
Under California’s Family Code, both parents have a duty to financially support their children. (Fam. Code § 4053(b).) Each parent should pay for the support of the children according to his or her ability. (§ 4053(d).) The state considers it appropriate to take income from a home that enjoys a higher standard of living to improve the lower standard of living home in order to “minimize significant disparities in the children’s living standards in the two homes.” (§ 4053(g).)
That being said, it is extremely rare for the court to consider spousal income when computing child support. Under the law, new spouse income shall not be considered when determining or modifying child support, except in an extraordinary case. (§ 4057.5(a)(1).)
What is an “extraordinary case”? The legislature specifies certain cases where this “may” occur, such as “a parent who voluntarily or intentionally quits work or reduces income,” or a parent who “intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income.” (§ 4057.5(b).)
Quick Answers About Guideline Child Support in California
California Family Code 4057 presumes that the amount produced by the statewide guideline formula is correct. A parent who wants a different amount must prove with admissible evidence that the formula result would be unjust or inappropriate, and the court must find at least one factor listed in subdivision (b).
Yes, but only for a reason the law recognizes. Examples listed in § 4057(b) include a stipulation between the parents, extraordinarily high income, a parent not contributing in line with custodial time, and special circumstances such as special medical needs. The judge must explain the departure on the record or in writing.
Usually not. Under Family Code 4057.5, the income of a new spouse or nonmarital partner generally cannot be considered when setting or changing child support, whether the partner belongs to the paying parent or the receiving parent. A court may consider it only in an extraordinary case.
Section 4057.5(b) gives examples, such as a parent who quits work or cuts income on purpose, or who stays unemployed or underemployed and depends on a spouse’s income. These are examples, not automatic triggers. Each case turns on its facts and on the court’s findings about hardship to the children involved.
Guideline support takes into account each parent’s income and the percentage of time each parent has the child. Substantially equal time-sharing can also matter as a special circumstance under § 4057(b) when one parent spends a much higher or lower share of income on housing. A lawyer can run the numbers for your schedule.
Child support orders can generally be modified when circumstances change, such as a significant change in income or time-sharing. Remarriage alone does not make a new spouse’s income part of the calculation, because § 4057.5 usually excludes it. Talk with a lawyer before you file anything.
Not always, but these disputes involve statutory presumptions, hardship findings, and financial disclosures that are easy to misjudge. A family law attorney can explain how §§ 4057 and 4057.5 apply to your facts and help you prepare evidence. Pakpour Banks LLP can review your situation and outline your options.
The Extraordinary Case for Including New Spouse Income
The textbook case of including new spouse income is where one parent chooses not to work because they rely on the income of his or her new spouse. Why? “Otherwise, one parent by a unilateral decision could eliminate his or her own responsibility to contribute to the support of the child, causing the entire burden of supporting the child to fall upon the employed parent.” Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384, fn. 5.
Even when that’s the case, however, the court must also consider whether including that income would lead to extreme and severe hardship to the other children supported by the new spouse. (§ 4057.5(a)(1).)
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.