12/04/2013 08:32 pm ET Updated Feb 03, 2014

New Spouse Income and Child Support in California

For those of you who still believe that "legal justice" is somehow fundamentally fair, I want to share with you some interesting points with regard to "Guideline child support" in California. Absent extraordinary circumstances, a new spouse's income may not be considered by a court in determining or modifying a child support order. An extraordinary case exists "where excluding that income would lead to extreme and severe hardship to any child subject to the child support award."

The statute on this issue is California Family Code Section 4057.5, which was enacted in 1994. The rationale behind the enactment of this statute was that a new spouse should not be obligated to support their step-child. It can be no surprise that the statute resulted from the fact that courts were previously permitted to take a new spouse's income into consideration when making orders regarding child support. Before I get into the explanation of how this plays out in real life, I must admit that I completely agree that a stepparent's income should not be used to pay child support to the other parent.

Considering that California is a community property state, income earned through work efforts during marriage belongs equally to each spouse. Therefore, each spouse only legally owns one half of any and all of the income they earn through their own work efforts. In fact, a married person may not legally leave more than their one half interest in community property to someone other than their surviving spouse upon their death. In the event that the parties divorce, the law provides that community property shall be divided equally. One would therefore assume that since one half of a new spouse's community property income belongs to the parent spouse, that it should be considered for purposes of calculating Guideline child support. The problem, however, is that considering such income essentially requires the new spouse to pay for the support of their stepchildren.

In an effort to eliminate such an inequity, new spouse income is considered for the limited purpose of determining how it impacts the tax liability of the parent spouse. Since California is a community property state, each spouse must include one half of the community property income and all of their separate property income on income tax returns if they file as Married Filing Separately. Regardless of whether filing Married Filing Jointly or Married Filing Separately, the new spouse's income may push the parent spouse into a higher tax bracket. Under such circumstances, the tax liability on the parent spouse's income will be greater and thus they actually take home less money from their own earnings. Since Guideline child support takes into account after-tax income, this may actually result in an increase in the amount of Guideline child support their former spouse must pay to them.

Imagine how you would feel if the amount of child support you pay to your ex-spouse increases by virtue of the fact that they later marry someone who earns enough income to place them into a higher income tax bracket. I can tell you that this is a very big pill for the parent paying the child support to swallow. Unfortunately, by not increasing the child support obligation in such situations, the new spouse would be forced to use more of their income to support their stepchild. The problem with this logic is that it assumes that the remarried parent actually uses the child support for the benefit of their children. What about when the receiving spouse considers that "support" to be their separate property and saves the money by placing it into a separate account in just their name or otherwise spends it on themselves? I know this sounds absurd, but how many new spouses insist that the child support received be specifically applied toward the support of their stepchildren? What do you think happens to a marriage in which the new spouse makes such an ultimatum?

In other words, I completely understand and agree that a new spouse's income should not be used to pay support to the other parent of their stepchildren. However, I don't believe that their income should be considered for purposes of increasing the amount of child support the parent spouse receives. For goodness sake, one half of the new spouse's income legally belongs to the parent spouse and yet is not considered in the support calculations. In effect, the parent spouse gets to have their cake and eat it too. For this reason, I believe that the new spouse income should never be considered for purposes of increasing the child support that the parent spouse receives and should actually result in a decrease in such support. This is especially true, considering that if the parent spouse and new spouse later divorce, the parent spouse is legally entitled to one half of the assets accumulated with that income and the spousal support the new spouse may be ordered to pay could be higher if the court considers the stepchild to be a hardship for the parent spouse. Why is it that a stepparent can be ordered to pay their ex-spouse a higher amount of spousal support because of the costs associated with raising their stepchild, but their income actually results in an increase of the Guideline child support the parent spouse receives while they are married? If the new spouse is not supporting the step-child to some degree while married, why are they essentially paying it in the form of an increase in their spousal support if they later divorce?

Unless I am missing something, these laws do not completely protect the stepparent, but provide a windfall to the parent spouse. Since I don't view windfalls as being fundamentally fair, I take issue with these results.