After a divorce, it is common for one or both parties to find a new love interest, whether that be a new boyfriend/girlfriend, a new live-in romantic partner, or a new spouse. Read more to find out how a new partner (or even a roommate) can affect both the payor and payee support obligations.
Spousal Support
Supported Party
Unless otherwise agreed on in writing, when the supported party remarries, the supporting party’s obligation to pay spousal support ends. (Family Code section 4337.)
What happens if the supported party does not formalize the new romantic relationship through marriage but does begin to live with the new love interest? When a supported party co-habitates with a new partner, but does not marry, the cohabitant’s income may be considered if it significantly reduces the supported party’s financial obligations. Alan S. v. Superior Court, 172 Cal. App. 4th 238, 255; In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1298.) In fact, under Family Code section 4323, unless the parties have agreed otherwise in writing, if the supported party co-habitates with a non-marital partner, a rebuttable presumption arises that he or she has a decreased need for spousal support. This presumption is based on the idea that living together produces economies of scale and a new mate’s income may be available to the supported party. (Marriage of Bower (2002) 96 Cal.App.4th 893, 899.)
Note that Family Code section 4323 applies in situations where there is more than a “roommate” relationship and instead contemplates a romantic relationship. For example, in the case of Marriage of Thweatt (1979) 96 Cal.App.3d 530, the court found that Wife did not have a decreased need for spousal support based on her cohabitation with two men in a roommate/boarder relationship. More specifically, Wife rented a house after getting divorced. Wife shared the costs of rent, utilities and food with a male roommate and her 20-year-old son. Each person living in the rental home had his or her own bedroom and both Wife and her male roommate were dating other parties.
Supporting Party
What happens if a supporting party moves in with a new romantic partner or new spouse? California Family Code section 4323 bars the court from considering the income of the new mate’s income to determine or modify spousal support. Along the same lines, supporting parties cannot reduce their support obligations because they are paying increased expenses due to the new mate. (Marriage of Romero (2002) 99 Cal.4th 1436, 1445-1446.)
Please note: While the court cannot consider a new mate’s income to determine or modify spousal support, the new mate’s contribution to monthly household expenses, such as rent or mortgage, should be disclosed on the supporting party’s Income and Expense Declaration (FL-150). This disclosure is necessary for the court to properly award attorney fees and costs if at issue. (See further discussion below.)
Child Support
According to Family Code section 4057.5, the court generally will not impute income from a new mate to either parent for purposes of calculating child support. The court will only consider a new mate’s income if excluding it will lead to “extreme and severe hardship” to a child subject to the child support order. Further, Section 4057.5 allows the court to consider new mate income in cases where one parent “voluntarily or intentionally quits work or reduces income” or “intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income.”
If the court does consider the income of either parent’s new mate, that income in generally proven through review of W2 and/or 1099 tax forms, except when the court decides that would be unfair or inappropriate. Further, if the court rules that a new mate’s income can be considered, the supporting parent can request a hardship deduction in relation to the living expenses of his or her stepchild. If granted, this hardship deduction may help counteract the new mate income.
Additionally, new spouse income is generally included on the DissoMaster. As explained in a previous blog, the DissoMaster software is commonly used in San Diego to calculate guideline child support in San Diego. When a new spouse’s income causes one parent’s tax bracket and income tax obligation to rise (because of joint tax returns), it can be advantageous for that parent to include the new spouse’s income on the DissoMaster.
Attorney Fee Awards
As explained above, the court is generally limited in considering new mate income when determining child and spousal support awards. However, the court has more leeway to consider new mate income in determining attorney fee awards.
Pursuant to Family Code sections 2030 and 2032, the court has power to order the payment of attorney fees and costs as between the parties based on their “relative circumstances.” In practice, the court reviews the parties’ respective incomes and needs and abilities to pay. The court’s goal in making these awards is to ensure that each party has an equal chance to retain quality legal representation. “The expansive language of section 2032—the “relevant circumstances of the respective parties”—also shows it is certainly relevant for fee awards.” (Alan S. v. Superior Court (2009) 172 Cal. App. 4th 238, 255.)
If you are concerned that your new mate’s income (or the income of your ex’s new mate) may be relevant to your spousal or child support order, please consult an experienced family law attorney at Broaden Law LLP.