Often, clients want to know whether the income of their new or subsequent spouse or nonmarital partner is considered by the courts in determining the amount of child support or spousal support that the client will have to pay. The general answer is that it is not considered. However, there are some exceptions, and the rules are different depending on whether the court is determining child support or spousal support.
Where the issue is child support, Family Code Section 4057.5 (a)(1) says that the income of the obligor (paying) parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor’s subsequent spouse or nonmarital partner.
The code section goes on to state that such “extraordinary case” where the court may consider new spouse or nonmarital partner income includes a case where the parent voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income. However, in the absence of such an extraordinary case, the court will not consider the income of a new spouse or nonmarital partner.
If the court did determine that there was an “extraordinary case” such that new spouse income should be considered, the Family Code section limits the discovery of that income to W2 and 1099 tax forms except where the court determines that application would be “unjust or inappropriate.”
Where the issue is spousal support, Family Code Section 4323 (b) clearly prohibits the consideration of the paying spouse’s new spouse or nonmarital partner income. The code section specifically provides that the income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
