A divorce case does not necessarily end when the judge signs the divorce decree. Often one party is ordered to pay maintenance, also known as alimony, to the other party. If there are minor children then child support will usually be ordered. As circumstances change it is often necessary for one of the parties to ask the court to modify its previous orders regarding the amount or duration of payments.
A common situation has the former husband paying maintenance, child support or both. Questions arise when one of the parties later marries or begins living with a new partner. This article will address common concerns regarding how this change of circumstances affects the payment of child support and/or maintenance.
Ken McRae, Esq.
1. If my ex-wife gets remarried does it impact my child support?
In most cases remarriage will not have any impact on child support. The new husband is not legally responsible for the children. The children are the responsibility of their parents. The court will base child support on the incomes of the parents. This often raises problems when the children’s mother marries a new husband who is wealthy. The father may have a tight budget and paying child support is a financial hardship. Meanwhile, the ex-wife and children are living an affluent life. Because the children are well taken care of by the mother and step-father the father feels his support is not necessary, at least not at the level he has been paying. The court will not usually be persuaded to reduce child support. The children remain the responsibility of their parents. The court cannot force the step-father to provide for the children and will not take his income into account. In extremely rare cases a court might grant the father a reduction from his child support if the parties’ financial conditions suggest it is in the best interest of the child or children. (For example, if the mother and step-father live rent and mortgage free in an inherited property). The burden for this type of adjustment is very high and the reduction will not usually be granted. The situation changes dramatically if the mother’s new husband adopts the minor children. In this scenario the step-father becomes a legal father to the children and is now required to provide for them. The natural father is no longer responsible for ongoing support of the children. There are two things to keep in mind about adoption. First, the adoptive father will be responsible for future support but the biological father will be responsible for any arrears which accumulated prior to the adoption. Second, and more importantly, if the children are adopted the biological father loses his legal standing and is no longer entitled to parenting time with the children.
2. If I get remarried will it impact my child support obligation?
The same rules discussed above apply when the father gets remarried. The step-mother’s income is not counted when determining child support, only the income of the parents. Furthermore, the father is not legally obligated to support his step-children, if there are any. His income will not impact the child support calculations in his new wife’s case either. Child support may be impacted if the father has another child with his new wife. This is a factor which the court should take into account when reviewing the father’s child support obligation. Now his income has to support hi current family as well as his children from the prior marriage. However, the reduction available will not be proportionate to the increase in family size. For example, if the father is paying child support for one child from a prior marriage then has a second child with his new wife, the reduction in his child support will be far less than fifty percent. Even though his older child is now only one-half of the total number of children, the support figure will be modify only slightly.
3. If my ex-wife gets remarried, or moves in with a new partner, do I still have to pay maintenance?
The answer to this question depends to a great degree upon the wording of your divorce orders. In many cases the ex-wife’s remarriage will terminate her prior husband’s obligation to pay maintenance. However, this is not always true. Maintenance is tax deductible to the paying party if certain requirements are met. One of the requirements is the maintenance must end upon the occurrence of at least one of a list of conditions. The listed conditions include death of either party, remarriage of the recipient or cohabitation by the recipient with another adult in a marriage-like relationship. The important fact to remember is the tax code requires at least one of the conditions to apply, not all of them. It is possible to draft a maintenance order which terminates only upon the death of either party and does not address re-marriage or cohabitation. T
his is why it is so important to look at the specific language in your divorce orders. Usually remarriage is listed as a terminating condition, but it does not have to be included. Co-habitation is often a trickier issue. It is relatively easy to prove a party has remarried. A search of public records or wedding announcements in the local paper may be enough to prove the point. There are not generally any public records of parties living together, however. It can be very difficult to prove cohabitation. If the two partners each maintain a separate address, even if one address sits unused, it may be evidence they are not cohabitating. At least one court has found the payment of rent by one of the involved parties to the other is evidence they are not cohabitating. The result is cohabitation theoretically will terminate maintenance in most cases, but the practical application is much harder.
4. If I get remarried do I still have to pay maintenance?
Unless you are marrying the woman to whom you owe the maintenance, the answer is yes. Even though you may be incurring more financial responsibilities by starting a new household you do not receive a break from your maintenance obligation for getting remarried. Each of the scenarios discussed above is meant to be illustrative. The facts of each case, and the law of the jurisdiction, are paramount considerations in modification cases. If you have questions about how the changes in your life will impact your maintenance or child support payments you should speak with a qualified domestic relations attorney in your area.