Ask a Divorce Lawyer: Can her ex have his child support increased based on my additional income?

Question: My wife’s youngest daughter, now a high school senior, has decided to move in with her biological father. As such, my wife told her ex husband to stop paying the child support of $833 each month since the daughter will now be living with him. 

Her ex husband has now decided to take her back to court for child support for him even though her income has not changed, $30,000 annually. But now that she is married to me and based on my additional income, her ex believes he should be receiving a substantial amount of child support. 

Is this legal and will the court now base the child support on my income in addition to hers?


Answer: I must preface that I do not practice in Texas.  You should contact a domestic litigation attorney licensed in Texas to discuss the laws regarding a spouse’s income in determining support.  Cordell & Cordell has many attorneys licensed and located in Texas who would be happy to help. 

In most jurisdictions, each parent has an obligation to maximize his or her earning capacity for the support of the children.  Generally, a spouse’s income is not included in the determination of income available for support.  However, there are situations where income would be imputed to your wife based on your support of the family.  For example, if your wife chose not to work and you were supporting the family, the Court could impute income to your wife based on her earning capacity.   

If the biological father has primary placement, your wife could expect that she will have to pay him some support.  Most states have a formula for determining child support.  For example, in Wisconsin, if your wife had less than 25% of overnight placement throughout the year, based on her earnings of $30,000 per year, she would owe him $425 per month. However, even though we have percentage guidelines, the Judge could deviate from the percentage standards for support after the Judge considers the financial circumstances of each parent.  

Because each state calculates support differently, you should discuss your situation with an attorney.  Your attorney will be able to discuss how child support is calculated in Texas and whether your income can be taken into consideration. 


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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