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.
The 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).)
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.
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