Dear Clients and Friends,
When one of the parties to a Dissolution of Marriage matter later marries or begins living with a new partner, this is considered a “change of circumstances” and the parties can seek a modification of the existing support orders.
CHILD SUPPORT: In most cases remarriage will not have any impact on child support. The new husband is not legally responsible for the children. They are the responsibility of their parents. The court will base child support on the incomes of the parents. This often raises problems when the children’s mother marries a new husband who is wealthy. The father may have a tight budget and paying child support is a financial hardship. Meanwhile, the ex-wife and children are living an affluent life. Because the children are well taken care of by the mother and step-father the father feels his support is not necessary, at least not at the level he has been paying. The court will not usually be persuaded to reduce child support. The children remain the responsibility of their parents. The court cannot force the step-father to provide for the children and will not take his income into account.
The situation changes dramatically if the mother’s new husband adopts the minor children. In this scenario the step-father becomes a legal father to the children and is now required to provide for them. The natural father is no longer responsible for ongoing support of the children. Keep in mind if the children are adopted the biological father loses his legal standing and is no longer entitled, among other things, to parenting time with the children.
similar rules apply when the father gets remarried. The step-mother’s income is not counted when determining child support, only the income of the parents. Furthermore, the father is not legally obligated to support his step-children, if there are any. His income will not impact the child support calculations in his new wife’s case either. Child support may be impacted if the father has another child with his new wife. This is a factor which the court should take into account when reviewing the father’s child support obligation. Now his income has to support his current family as well as his children from the prior marriage. However, the reduction available will not be proportionate to the increase in family size. For example, if the father is paying child support for one child from a prior marriage then has a second child with his new wife, the reduction in his child support will be far less than fifty percent. Even though his older child is now only one-half of the total number of children, the support figure will be modify only slightly.
SPOUSAL SUPPORT: Here the issue for the most part depends on the wording of your divorce orders. In many cases the ex-wife’s remarriage will terminate her prior husband’s obligation to pay spousal support. However, this is not always true. Spousal support is tax deductible to the paying party if certain requirements are met. One of the requirements is that spousal support must end upon the occurrence of at least one of a list of conditions. The listed conditions include death of either party, remarriage of the recipient or cohabitation by the recipient with another adult in a marriage-like relationship. The important fact to remember is the tax code requires at least one of the conditions to apply, not all of them. It is possible to draft a spousal support order which terminates only upon the death of either party and does not address re-marriage or cohabitation.
Therefore it is important to look at the specific language in your divorce orders. Usually remarriage is listed as a terminating condition, but it does not have to be included. Co-habitation is often a trickier issue. It is relatively easy to prove a party has remarried. On the other-hand It can be difficult to prove cohabitation. If the two partners each maintain a separate address, even if one address sits unused, it may be evidence that they are not cohabitating. At least one court has found the payment of rent by one of the involved parties to the other is evidence they are not cohabitating. The result is cohabitation theoretically will terminate spousal support in most cases but the practical application can be a challenge.
If the paying spouse remarries, spousal support will not be terminated. Even though that spouse may be incurring more financial responsibilities by starting a new household.
Call us for a free phone evaluation if you or others you know have a family law matter that on which we can be of help.
Best,
Ron