If I am paying or receiving support and I co-habit with a new partner will their income be taking into
account in reducing or increasing support?
That depends on whether we are talking about child or spousal support. In most cases of child
support new mate income of either the payor or payee does not count. In cases of spousal support,
the income of the payor’s new spouse or nonmarital partner will not affect support, but if the payee
gets remarried their support usually ends and if they co-habit the income of their new partner may
reduce their spousal support.
Child Support and New Mate Income
After 1993 with the enactment of Family Code section 4057.5, the Court may not consider the income
of a subsequent spouse or nonmarital partner of the payor or payee of child support except “in an
extraordinary case where excluding that income would lead to extreme hardship to any child subject
to the child support award.” The Family Code only mentions one extraordinary case where new mate
income can be taken into account: where a parent quits work or reduces their income or remains
unemployed or underemployed because they are relying on the new mate income. In most of these
situations, the burden of proving that a parent could earn more “but for” reliance on the income of a
new spouse or partner, is on the parent requesting the modification.
What if the new spouse or nonmarital partner contributes to expenses?
This is a question that is asked on the standard income and expense declaration that must be filed in
any child support proceeding. In one case (1) an ex husband brought an OSC for a downward
modification of child support based on the fact that the ex wife had re-married a wealthy new
husband. Cognizant of Family Code section 4057.5, the trial court said that although it could not
consider the income of the new husband, it could reduce the amount of child support that the ex-
husband was paying based on the ex wife’s increase in her standard of living. Although it didn’t
explicitly say so, presumably this came about because the new husband was paying more expenses.
The Court of Appeal overruled the trial court and held that the Court could not consider the new mate
income, directly or indirectly, unless it would result in extreme hardship to the children. However,
some cases have created the impression amongst some commentators that if an ex-spouses
expenses are paid for by a new spouse or nonmarital partner, these “freebies” should be added back
to the ex-spouses income as additional non-taxable income. The Court of Appeal has specifically
criticized this approach which characterizes as income "anything that reduces living expenses” (2) in
so far as it relates to new mate income.
Spousal support and new mate income
If you are paying spousal support, with the enactment of Family Code 4323 (b) in 1993, the income of
a new spouse or non-marital partner cannot be taken into account in calculating spousal support.
There is no comparable extreme hardship exception as in the case of child support. The Court of
Appeal has strictly construed this provision so that new mate income cannot be taken into account
directly or indirectly by virtue of the fact that it may increase the payors disposable income because
the new mate pays the payors living expenses. (3) Even if the new spouse causes an increase in the
payor’s living expenses, that cannot be taken into account.
The situation is very different for the ex spouse receiving spousal support. Unless otherwise agreed
in writing, re-marriage of the supported spouse terminates spousal support. Further, co-habitation
with a new partner creates a rebuttable presumption of a decreased need for spousal support. (4)
The ex spouse must then prove that the co-habitation has not affected his or her need for support.
(1) In Re Marriage of Wood (1995) 37 Cal. App. 4th 1059
(2) In Re Marriage of Loh (2001) 93 Cal. App. 4th 1436
(3) IN Re Marriage of Romero (2002) 99 Cal. App. 4th 1436
(4) Family Code section 4323 (a)(1)
Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell to discuss your
child support issue.
Please call to make an appointment now 310.247.9913.
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