What Does the Court Do When a Spouse Quits Work and Relies On an Affluent New Spouse?
The fact a parent intentionally
remains unemployed or underemployed and
relies on a subsequent spouse’s income is deemed an “extraordinary case” that may warrant consideration of the new spouse’s income in fixing
child support (Fam.C. § 4057.5 (b)). But even here, new mate income
cannot be factored into the child support equation absent extreme and severe hardship to the child
Alternatively, therefore, courts may exercise discretion to fill the void by basing the child support obligation on the formerly employed/now-unemployed parent’s
earning capacity (assuming that approach would otherwise be proper under the facts). [
Marriage of Paulin (1996) 46 CA4th 1378 —custodial parent’s monthly income from prior employment properly considered where she had voluntarily quit work upon remarriage and offered no concrete proof of efforts to find new comparable employment]
“When child support is ordered at a time when both parents are employed and thereafter one arbitrarily decides to stop working, perhaps because of remarriage to someone with significant income, the court must possess the discretion to consider that parent’s earning capacity in ordering child support … 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, supra, 46 CA4th at 1384, 54 CR2d at 318, fn. 5; see also Marriage of Wood (1995) 37 CA4th 1059, 1071, 44 CR2d 236, 243 (disapproved on other grounds in Marriage of Fellows (2006) 39 C4th 179, 187, 46 CR3d 49, 55)—trial court ordered to attribute earning capacity to unemployed custodial parent based on her having been employed full-time in new spouse’s business].
When you are confronted with this situation, call the Edgar & Dow at
(888) 251-9618 to schedule a free consultation with an experienced child support attorney. We will discuss the issue of earning capacity with you and prepare your matter for the court to consider the other parties potential to earn.
