New Spouse Income and Child Support

how to talk to your children about divorce

If, after divorce, one spouse remarries and that spouse has a significant income, should that income count with regard to child support – even though that new spouse has no legal relationship to the child at issue?

The Western District addressed this issue recently in Jaco v. Jaco. Mother and father divorced and shared joint legal and physical custody of their minor child. The parties agreed that neither party would pay child support, even though at the time mother earned $3,476 a month and father only $2,305. After the divorce, father remarried and mother had a fiancé. Mother intended to marry someone who earned a similar income to her own, while father married someone who made significantly more — $7,083 per month. Father reported that his new spouse contributed to half the household expenses, and mother stated that her fiancé paid for 40% of the household expenses. The trial court completed a Form 14, which indicated mother would have to pay father a presumptive child support amount of $401.00 per month. The trial court found this unjust and inappropriate because father had sufficient assistance from his current spouse to negate the need for child support.

On appeal, father argued that the trial court violated Section 453.400 RSMo, which states that “no court shall consider the income of a stepparent…in determining the amount of child support to be paid by a natural or adoptive parent.” The Western District rejected this argument, finding the controlling statute to be Section 452.370, which states that in a motion to modify child support, the trial court must consider “all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits.” The Western District read the “shall consider” as critical – the legislature instructs the trial court it must look to all financial resources.

In any motion to modify, the party moving for the modification must show a substantial change in circumstances. At the time of the dissolution, the trial court found neither party needed child support. Father, by moving to modify, had to show something changed in the finances that he now required child support. While after the divorce mother did have the help of her fiancé with whom she lived, that increase in financial resources alone could not justify a modification. The court had to look to father and see if his need changed – and in fact his need decreased because of the substantial contribution of his new spouse. So, the Western District concluded father failed to show a change in circumstances.

It appears that the Western District felt the proper way to harmonize the two statutes at issue, if they truly conflict, is to have the trial court consider the income of each parent alone and arrive at a presumed child support amount. After making this calculation, the trial court may consider if the amount is unjust or inappropriate after considering all the financial resources available.

One can see both sides of the arguments made by the parties in this case. The point of the stepparent statute is to make sure the resources of a stepparent do not eliminate the duty of support of a natural parent – the law demands both parents support their child. At the same time, making one parent pay child support to a parent who has more than enough to pay the reasonable expenses of the child diminishes the ability of the other parent to provide for the reasonable expenses of the child and has the effect of making one parent pay a higher percentage of the total expenses of the child than the financial circumstances demand.

So, the answer to the question at the outset is that yes, the income of a new spouse could affect the amount of child support owed if a parent sought a modification – but only if that income would result in a substantial change from the court-ordered support prior to the new marriage.

If you have questions about new spouse income and child support, contact us – we can help.