Child Support: Is My New Spouse’s Income Used to Calculate My Payment?

One of the most frequent questions I am asked goes something like this:  

I am paying child support for my children pursuant to a New York support order.  I have just remarried.  Will my new spouse’s income be used to calculate child support to be paid to my ex? 

The answer is generally no.   Your new spouse is not responsible for paying to support your children from a prior relationship. The exception is, however, if your children are going to seek public assistance, your new spouse’s income may be considered.

A more problematic scenario arises when the new marriage allows you to avoid an expense, and by virtue of not incurring an expense, you have imputed income.  For example, suppose you move into your new spouse’s fully paid for home (obtained through his/her divorce); you would, in theory, have no housing expense.  By virtue of not having a mortgage or rent payment, you now could have more money available to spend on your children.   

If  you and your new spouse file a joint tax return and there is an application to modify child support, the joint tax return will be have to be produced, but only your income will be used to make the support payment calculation.   

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