How Remarriage, Cohabitation and Children of Other Relationships Affects Support Obligations

 Posted on February 09, 2021 in Divorce

Wheaton lawyer for support obligationsSince 2019, Illinois has utilized an income shares model for calculating child support.  The income sharing model considers the combined net income of both of the parents and the number of children in calculating the amount of child support. Each parent is then required to pay a percentage of the total obligation that is proportionate to their percentage of the combined income.

Most of the time, the parent with the majority of parenting time, even if they earn more than the other parent, will receive child support payments. The amount of support, however, changes substantially in a shared parenting scenario where the minority parent has at least 146 days with the children during the year. In this situation, the amount of support substantially decreases as the number of overnights above 146 increases.

How does remarriage affect my child support payment?

Generally, when a party paying support remarries, his or her new spouse’s income will not change the amount of support due to the recipient parent. The same goes for the reverse situation: even if the recipient party remarries someone with a significant income, the obligor’s monthly child support will not decrease. The income of the obligor’s spouse is not factored into child support calculations because the new spouse has no legal obligation to financially support the obligor’s child. However, new spouse income can still be considered in the context of child support (and sometimes maintenance) modification proceedings or in rare instances the initial setting of support with unusual circumstances. Even though a new spouse doesn’t have any legal obligation for the support of his or her stepchildren, when one or both parties have since remarried or is living with someone in a committed long-term relationship, the income of the new spouse or cohabitant can be relevant.

One justification for considering a new spouse’s income is that couples are likely to pool their resources, ultimately increasing the funds available to the party paying support. The courts have found that they may look at the financial status of a party’s new spouse to the extent that the new spouse actually contributes to the expenses, ultimately freeing up the support obligor’s income for payment of child support or maintenance. An important point when defending against this argument is that if the new spouse’s income, in fact, is not used to relieve the support obligor from some of his or her financial obligations, then the new spouses’ income should not be considered.

A new spouse’s financial status could also be important in a scenario where once spouse is seeking contribution to college expenses since these expenses are, by their nature, child support. The custodial parent’s new husband’s income in relation to a child’s college education expenses was considered in In re Marrriage of Drysch, 314 Ill. App. 3d 640 (2d Dist. 2000). The Appellate Court noted that pursuant to the Illinois Marriage and Dissolution of Marriage Act, the Court may consider, among other factors, the “financial resources” of the parents. The Court stated that “we believe that the legislature intended that the trial court consider all the money or property to which a parent has access. This may include that parent’s income, her property and investment holdings, as well as money or property that could be available to her through her new spouse.”

On the contrary, it is quite possible to argue that new spouse income, or lack thereof, can also be relevant in these types of proceedings. The financial status of a current spouse may be equitably considered to determine whether the payment of child support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs. For example, in another case, the court held that it was not error to admit into evidence the fact that the noncustodial parent’s present wife was unemployed because of a strike. The appellate court ruled that admitting such evidence was not error, because the present wife’s employment status is certainly relevant to the issue of her husband’s available means. In re Support of Whitney, 90 Ill. App. 3d 734 (3d Dist. 1980).

How do other children play into my child support payments?

Children from other relationships also factor into the calculations of support, and since 2019, that also includes children born after the children subject to the support proceedings.  The statute obligates the court to factor in court ordered support payments and even those obligations that exist without a support order.  When support is actually paid pursuant to court order, the adjustment to income is simple.  However, if support is paid without a court order, it’s more difficult.  The statute states that:

“The court shall deduct from the parent's net income the amount of financial support actually paid by the parent for the child or 75% of the support the parent should pay under the child support guidelines (before this adjustment), whichever is less, unless the court makes a finding that it would cause economic hardship to the child. The adjustment shall be calculated using that parent's income alone.”

Essentially this means the court can either itemize expenses paid for the other child(ren) and adjust income accordingly or the court can take 75% of what would be paid for child support under statutory guidelines. 

Remarriage and Maintenance Termination

Most divorced individuals know that remarriage or living with a significant other can be a basis to terminate maintenance, since the statute provides that the obligation to pay future maintenance is terminated upon the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis. For more on this see: My Ex Lives With a Significant Other - Do I Still Owe Spousal Support?

If you have questions about how your new relationship or child(ren) play into your support obligations, contact the attorneys at McSwain Nagle Giese & Rapp, P.C. for a free consultation. 

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