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| The
role of a second spouse’s income in
child support calculations |
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| A
LEGAL PRIMER |
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QUESTION
1: My ex-wife, whom I pay child
support to, married a man who makes
a lot of money—should my ex-wife new
husband’s income be considered when
calculating child support under Massachusetts’s
law? |
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| ANSWER:
Yes. |
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QUESTION
2: I pay child support and
married a woman who makes a lot of
money—should my new wife’s income
be considered when calculating child
support under Massachusetts’s law? |
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| ANSWER:
Yes. |
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| ANALYSIS: |
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”The [child support]
statute is now an integral part of
a comprehensive statutory and
common law pattern which places marital
and parental obligations on both
husband and wife. “ Silvia
v. Silvia, 9 Mass. App. Ct. 339,
340-341 (Mass. App. Ct. 1980) (emphasis
added); Feinberg v. Diamant,
378 Mass. 131, 135, 136 (1979). See
also Knox v. Remick, 371 Mass.
433, 437 (1976); House v. House,
368 Mass. 120 (1975). “When viewed
in this context, there is no question
that G. L. c. 208, § 28, imposes a
duty of child support on the wife
as well as on the husband.” Silvia,
9 Mass. App. Ct. a 341.
“Both parents have a duty to support
their children.” Id. |
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Because the support
obligation falls equally on
the custodial and non-custodial parent,
“[i]ncome of second spouse may be
considered in calculating obligor's
ability to pay alimony.” Dep't
of Revenue v. Mason M., 439 Mass.
665, 675 (Mass. 2003) (emphasis added)
(holding “Because the income of the
wife contributed to the support of
the marital household, the father
had available more of his own money
with which to provide for the financial
well-being of [the child].”)
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“The income and
assets of second spouses are part
of the circumstances relevant to the
ability of parents to use their own
resources to contribute to the support
of their children.” Silvia v. Silvia,
9 Mass. App. Ct. 339, 342 (Mass. App.
Ct. 1980). See also,
Cooper v. Cooper, 43 Mass.
App. Ct. 51, 55 (Mass. App. Ct. 1997)
(holding, “A Probate Court judge may
consider the income or assets of a
second spouse.”) As the Cooper
court explained: |
A
Probate Court judge may consider the
income or assets of a second spouse.
[The obligee father] is correct that
a second wife does not share the duty
to obey a support order directed against
her spouse. However, because the income
of a second spouse contributes to
the support of the current household,
the obligated spouse has more of his
or her own money with which to satisfy
alimony. |
| Cooper v. Cooper, 43 Mass. App. Ct.
51, 55 (Mass. App. Ct. 1997) (internal
citations omitted.) It is legal
error not to admit evidence of the second
spouse’s income. As explained
in the Sylvia court: |
| The
husband also argues that the judge
should not have admitted evidence
as to his present wife's income. The
admission was proper. Although a second
marriage does not relieve a spouse
of marital and parental obligations,
O'Brien v. O'Brien, 325 Mass.
573, 576 (1950); Pemberton v. Pemberton,
9, 13 (1980), and although a second
husband or wife does not share the
duty to obey a support order directed
toward the other spouse, see Krokyn
v. Krokyn, 378 Mass. 206, 215
(1979), the income and assets of second
spouses are part of the circumstances
relevant to the ability of parents
to use their own resources to contribute
to the support of their children.
Silvia v. Silvia, 9 Mass. App.
Ct. 339, 342 (Mass. App. Ct. 1980)
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For these reason,
a “judge properly could consider the
income and assets of [the father child
support obligee’s] second wife as
part of the circumstances relevant
to his ability to pay. Matteson
v. Matteson, 23 Mass. App. Ct.
945, 946 (Mass. App. Ct. 1986).
Massachusetts courts have even ruled
that it made little difference in
case where the wife worked with the
obligee father whether the income
belonged to father or the new wife,
holding: |
| The
judge was not required to believe
testimony that the nature of the work
performed by Ryan's wife as office
manager for the business (the only
occupation she lists on the tax returns)
entitled her to a substantial
salary that was equal to or greater
than that of Ryan, and the judge's
attribution of income to Ryan was
reasonable on the basis of the credible
evidence. In any case, even had the
judge determined that Ryan's income
consisted solely of the amounts set
forth on his W-2 form and some
or all of the interest income, it
would not have been error for the
judge to consider whether the income
of Ryan's wife made more of the income
earned by Ryan available for the support
of the child. See Department of
Rev. v. Mason M., 439 Mass. 665, 675,
790 N.E.2d 671 (2003).
Dep't of Revenue v. Ryan R.,
62 Mass. App. Ct. 380, 388-389 (Mass.
App. Ct. 2004) (emphasis added.) |
The rule clearly
works in both ways. Since the
duty of the support obligation falls
equally on the custodial and non-custodial
parent, the second spouse’s income
of the non-custodial parent would
equally have to be considered, just
as is the case for the custodial parent.
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Consider the
case of Birge v. Simpson, 280
So. 2d 482 (Fla. Dist. Ct. App. 1973),
cited favorably by the Massachusetts
Court of Appeals in Silvia,
9 Mass. App. Ct. at 342. In
Birge, “At the time an
order directing appellant father to
pay child support was entered, neither
party had remarried, and appellant,
who was employed by the Air Force,
earned more income than appellee mother
earned in her employment.” Birge,
280 So. 2d 482. Subsequently, both
parties remarried. Appellant [child
support paying father] left the Air
Force and began working as a truck
driver earning significantly less.
“ Id. Appellant [father] petitioned
for a modification of the child support
order. The trial court denied his
request to admit into evidence the
income of appellee's [child support
receiving mother’s] new husband.”
Id. It was rule that
the child support-receiving mother
had an equal duty of contributing
to the support of the parties' children.
Id. As such, the income
received by the child support receiving
mother’s new husband had a direct
bearing on her ability to contribute
to their support, and such evidence
was essential for the trial court
to determine the respective contributions
of both parents. Id. |
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A similar result
was reached in Aura v. Aura,
342 So. 2d 1200, 1201 (La. App. 1977),
also cited favorably by the Massachusetts
Appellate Court in Silvia,
9 Mass. App. Ct. at 342. In
Aura, “Albert Aura obtained
a divorce; the wife was granted custody
of their two minor children and he
was ordered to pay child support.
“Aura, 342 So. 2d 1200. “The
father remained single but the mother
remarried.” Id. “By separate
actions the father sought to decrease
the support award.” Id.
“The question on appeal [was] whether
the record supports the trial court's
refusal to modify the previous child
support award and particularly whether
the wife's remarriage to a capable
provider is relevant to this question.”
Id. (Emphasis added.)
“The father contend[ed] the award
should be reduced primarily because
the mother is now married to a capable
provider and is able to contribute
more to the support of the children.”
Id. The Aura Court
ultimately ruled, “Although the second
husband owes no legal obligation to
furnish any portion of these increased
needs, the mother's obligation
remains and her present husband's
income is part of the totality of
the circumstances.” Id.
The Aura court explained: |
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| We
hold that in determining whether or
not there has been such a substantial
change of circumstances as will warrant
a modification of the child support
provisions of the divorce decree,
the trial court must consider the
income available to both parents and
to their respective new marital communities.
. . . While [the second husband
of the mother who is receiving child
support] has no legal obligation to
support the children in question,
this court simply will not blind itself
to the reality that the mother, who
does have a legal obligation to support
her children, has married a capable
provider who has enhanced her opportunity
to furnish a portion of the support
of the children in her custody. .
. . The court should consider the
totality of the circumstances involved.
Aura v. Aura, 342 So. 2d 1200,
1201 (La. Ct. App. 1977) |
In Silvia,
9 Mass. App. Ct. at 342, the case
of Smith v. Smith, 13 Wn. App.
381, 386 (Wash. Ct. App. 1975) (a
community property state) was also
cited favorably. In Smith, the
court held: |
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The earnings
of the new community can be required
to respond in contribution for reasonable
child support, whether or not the
children are resident with the new
community.. . . . Defendant's argument
that public policy dictates the opposite
conclusion as to a remarried mother
is without merit in this day
of women's emancipation and their
participation at almost every level
of responsibility in business, government
and community affairs. |
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| Smith v. Smith, 13 Wn. App.
381, 384—385 (Wash. Ct. App. 1975). |
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CONCLUSION:
Custodial and non-custodial parents
have an equal obligation to support
their children based upon their available
resources. When parents of children
remarry, the income of their respective
new spouses, whether it be the spousal
income of the parent receiving
child support, or whether it be the
spousal income of the parent paying
child support, must be considered
as part of the totality of the circumstances.
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| HI ALL, |
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| There is a loophole in this that a
clever woman can drive a truck through: |
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if she is NOT
WORKING, and has no "income",
then her new hubby's income and assets
DO NOT COUNT. WHY? Because they only
count toward determining what portion
of her "income" is available
to cover the cost of the children.
This is why my ex is not working.
READ carefully all the attached cases
(and those from the 1970s from other
states have little value, if any)
and you will see this problem is HUGE.
BEEN THERE. |
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If I am wrong, please cite the cases
where this loophole was addressed!
thank you and beware,
Elan |
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| PROHIBITION AGAINST
RETROACTIVE MODIFICATION |
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Federal law provides
that every child support installment
becomes a judgment by operation of
law as it comes due and is not subject
to retroactive modification.[ 51]
This precludes modification of a support
order for any period prior to the
date of filing the request for modification
and notice to the other party. For
a noncustodial parent seeking modification,
it is important to take timely action
to avoid paying a large judgment of
arrears, which accumulated prior to
the filing.[ 52]
Although some courts have provided
equitable relief from these arrears
in severe hardship situations,[ 53]
other courts have hesitated to do
so, concluding that it is tantamount
to a retroactive modification and
violates public policy.[ 54] |
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