Home Recommended Products Contact Us
 
 
Home
Resources & Links
Fatherlessness Statistics
Child Support
Legal Resources
Search This Site
Bad Judges List
Free Templates
Restraining Orders
Judicial Abuse Stories
Father's Stories
Legal Help & Referrals
Constitutional Rights
Donate
Table of Contents
Terms & Conditions
 
 
Signup for Newsletter
 
E-mail:  
 
 
Search Site
 
 
 
 
 
 
The role of a second spouse’s income in child support calculations
 
A LEGAL PRIMER 
 
QUESTION 1: My ex-wife, whom I pay child support to, married a man who makes a lot of money—should my ex-wife new husband’s income be considered when calculating child support under Massachusetts’s law?  
 
ANSWER: Yes.
 
QUESTION 2: I pay child support and married a woman who makes a lot of money—should my new wife’s income be considered when calculating child support under Massachusetts’s law?
 
ANSWER: Yes.
 
ANALYSIS:
 
”The [child support] statute is now an integral part of a comprehensive statutory and common law pattern which places marital and parental obligations on both husband and wife. “ Silvia v. Silvia, 9 Mass. App. Ct. 339, 340-341 (Mass. App. Ct. 1980) (emphasis added); Feinberg v. Diamant, 378 Mass. 131, 135, 136 (1979). See also Knox v. Remick, 371 Mass. 433, 437 (1976); House v. House, 368 Mass. 120 (1975). “When viewed in this context, there is no question that G. L. c. 208, § 28, imposes a duty of child support on the wife as well as on the husband.” Silvia, 9 Mass. App. Ct. a 341.   “Both parents have a duty to support their children.” Id.
 
Because the support obligation falls equally on the custodial and non-custodial parent, “[i]ncome of second spouse may be considered in calculating obligor's ability to pay alimony.”  Dep't of Revenue v. Mason M., 439 Mass. 665, 675 (Mass. 2003) (emphasis added) (holding “Because the income of the wife contributed to the support of the marital household, the father had available more of his own money with which to provide for the financial well-being of [the child].”) 
 
“The income and assets of second spouses are part of the circumstances relevant to the ability of parents to use their own resources to contribute to the support of their children.” Silvia v. Silvia, 9 Mass. App. Ct. 339, 342 (Mass. App. Ct. 1980).  See also, Cooper v. Cooper, 43 Mass. App. Ct. 51, 55 (Mass. App. Ct. 1997) (holding, “A Probate Court judge may consider the income or assets of a second spouse.”) As the Cooper court explained:

A Probate Court judge may consider the income or assets of a second spouse. [The obligee father] is correct that a second wife does not share the duty to obey a support order directed against her spouse. However, because the income of a second spouse contributes to the support of the current household, the obligated spouse has more of his or her own money with which to satisfy alimony.

Cooper v. Cooper, 43 Mass. App. Ct. 51, 55 (Mass. App. Ct. 1997) (internal citations omitted.)  It is legal error not to admit evidence of the second spouse’s income.  As explained in the Sylvia court:

The husband also argues that the judge should not have admitted evidence as to his present wife's income. The admission was proper. Although a second marriage does not relieve a spouse of marital and parental obligations, O'Brien v. O'Brien, 325 Mass. 573, 576 (1950); Pemberton v. Pemberton, 9, 13 (1980), and although a second husband or wife does not share the duty to obey a support order directed toward the other spouse, see Krokyn v. Krokyn, 378 Mass. 206, 215 (1979), the income and assets of second spouses are part of the circumstances relevant to the ability of parents to use their own resources to contribute to the support of their children.

Silvia v. Silvia, 9 Mass. App. Ct. 339, 342 (Mass. App. Ct. 1980)

For these reason, a “judge properly could consider the income and assets of [the father child support obligee’s] second wife as part of the circumstances relevant to his ability to pay. Matteson v. Matteson, 23 Mass. App. Ct. 945, 946 (Mass. App. Ct. 1986).  Massachusetts courts have even ruled that it made little difference in case where the wife worked with the obligee father whether the income belonged to father or the new wife, holding:

The judge was not required to believe testimony that the nature of the work performed by Ryan's wife as office manager for the business (the only occupation she lists on the tax returns) entitled her to a substantial salary that was equal to or greater than that of Ryan, and the judge's attribution of income to Ryan was reasonable on the basis of the credible evidence. In any case, even had the judge determined that Ryan's income consisted solely of the amounts set forth on his W-2 form and some or all of the interest income, it would not have been error for the judge to consider whether the income of Ryan's wife made more of the income earned by Ryan available for the support of the child. See Department of Rev. v. Mason M., 439 Mass. 665, 675, 790 N.E.2d 671 (2003).

Dep't of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 388-389 (Mass. App. Ct. 2004) (emphasis added.)

The rule clearly works in both ways.  Since the duty of the support obligation falls equally on the custodial and non-custodial parent, the second spouse’s income of the non-custodial parent would equally have to be considered, just as is the case for the custodial parent.
 
Consider the case of Birge v. Simpson, 280 So. 2d 482 (Fla. Dist. Ct. App. 1973), cited favorably by the Massachusetts Court of Appeals in Silvia, 9 Mass. App. Ct. at 342.  In Birge,  “At the time an order directing appellant father to pay child support was entered, neither party had remarried, and appellant, who was employed by the Air Force, earned more income than appellee mother earned in her employment.”  Birge, 280 So. 2d 482. Subsequently, both parties remarried. Appellant [child support paying father] left the Air Force and began working as a truck driver earning significantly less. “ Id. Appellant [father] petitioned for a modification of the child support order. The trial court denied his request to admit into evidence the income of appellee's [child support receiving mother’s] new husband.”  Id.  It was rule that the child support-receiving mother had an equal duty of contributing to the support of the parties' children. Id.  As such, the income received by the child support receiving mother’s new husband had a direct bearing on her ability to contribute to their support, and such evidence was essential for the trial court to determine the respective contributions of both parents. Id.
 
A similar result was reached in Aura v. Aura, 342 So. 2d 1200, 1201 (La. App. 1977), also cited favorably by the Massachusetts Appellate Court in Silvia, 9 Mass. App. Ct. at 342.  In Aura, “Albert Aura obtained a divorce; the wife was granted custody of their two minor children and he was ordered to pay child support. “Aura, 342 So. 2d 1200. “The father remained single but the mother remarried.” Id.  “By separate actions the father sought to decrease the support award.” Id.  “The question on appeal [was] whether the record supports the trial court's refusal to modify the previous child support award and particularly whether the wife's remarriage to a capable provider is relevant to this question.” Id. (Emphasis added.)   “The father contend[ed] the award should be reduced primarily because the mother is now married to a capable provider and is able to contribute more to the support of the children.” Id. The Aura Court ultimately ruled, “Although the second husband owes no legal obligation to furnish any portion of these increased needs, the mother's obligation remains and her present husband's income is part of the totality of the circumstances.” Id. The Aura court explained:
 

We hold that in determining whether or not there has been such a substantial change of circumstances as will warrant a modification of the child support provisions of the divorce decree, the trial court must consider the income available to both parents and to their respective new marital communities. . . .  While [the second husband of the mother who is receiving child support] has no legal obligation to support the children in question, this court simply will not blind itself to the reality that the mother, who does have a legal obligation to support her children, has married a capable provider who has enhanced her opportunity to furnish a portion of the support of the children in her custody. . . . The court should consider the totality of the circumstances involved.

Aura v. Aura, 342 So. 2d 1200, 1201 (La. Ct. App. 1977)

In Silvia, 9 Mass. App. Ct. at 342, the case of Smith v. Smith, 13 Wn. App. 381, 386 (Wash. Ct. App. 1975) (a community property state) was also cited favorably.  In Smith, the court held:
 
The earnings of the new community can be required to respond in contribution for reasonable child support, whether or not the children are resident with the new community.. . . . Defendant's argument that public policy dictates the opposite conclusion as to a remarried mother is without merit in this day of women's emancipation and their participation at almost every level of responsibility in business, government and community affairs.
 
Smith v. Smith, 13 Wn. App. 381, 384—385 (Wash. Ct. App. 1975).
 
CONCLUSION: Custodial and non-custodial parents have an equal obligation to support their children based upon their available resources. When parents of children remarry, the income of their respective new spouses, whether it be the spousal income of the parent receiving child support, or whether it be the spousal income of the parent paying child support, must be considered as part of the totality of the circumstances.
 
HI ALL,
 
There is a loophole in this that a clever woman can drive a truck through:
 
if she is NOT WORKING, and has no "income", then her new hubby's income and assets DO NOT COUNT. WHY? Because they only count toward determining what portion of her "income" is available to cover the cost of the children. This is why my ex is not working. READ carefully all the attached cases (and those from the 1970s from other states have little value, if any) and you will see this problem is HUGE. BEEN THERE.
 
If I am wrong, please cite the cases where this loophole was addressed!

thank you and beware,

Elan
 
PROHIBITION AGAINST RETROACTIVE MODIFICATION
 
Federal law provides that every child support installment becomes a judgment by operation of law as it comes due and is not subject to retroactive modification.[51] This precludes modification of a support order for any period prior to the date of filing the request for modification and notice to the other party. For a noncustodial parent seeking modification, it is important to take timely action to avoid paying a large judgment of arrears, which accumulated prior to the filing.[52] Although some courts have provided equitable relief from these arrears in severe hardship situations,[53] other courts have hesitated to do so, concluding that it is tantamount to a retroactive modification and violates public policy.[54]