LAW OFFICES OF
WARREN R. SHIELL
If I am paying or receiving support and I co-habit with a new partner will their income be taking into account in reducing or increasing support?
That depends on whether we are talking about child or spousal support. In most cases of child support new mate income of either the payor or payee does not count. In cases of spousal support, the income of the payor’s new spouse or nonmarital partner will not affect support, but if the payee gets remarried their support usually ends and if they co-habit the income of their new partner may reduce their spousal support.
Child Support and New Mate Income
After 1993 with the enactment of Family Code section 4057.5, the Court may not consider the income of a subsequent spouse or nonmarital partner of the payor or payee of child support except “in an extraordinary case where excluding that income would lead to extreme hardship to any child subject to the child support award.” The Family Code only mentions one extraordinary case where new mate income can be taken into account: where a parent quits work or reduces their income or remains unemployed or underemployed because they are relying on the new mate income. In most of these situations, the burden of proving that a parent could earn more “but for” reliance on the income of a new spouse or partner, is on the parent requesting the modification.
What if the new spouse or nonmarital partner contributes to expenses?
This is a question that is asked on the standard income and expense declaration that must be filed in any child support proceeding. In one case an ex husband brought an OSC for a downward modification of child support based on the fact that the ex wife had re-married a wealthy new husband. Cognizant of Family Code section 4057.5, the trial court said that although it could not consider the income of the new husband, it could reduce the amount of child support that the ex-husband was paying based on the ex wife’s increase in her standard of living. Although it didn’t explicitly say so, presumably this came about because the new husband was paying more expenses. The Court of Appeal overruled the trial court and held that the Court could not consider the new mate income, directly or indirectly, unless it would result in extreme hardship to the children. However, some cases have created the impression amongst some commentators that if an ex-spouses expenses are paid for by a new spouse or nonmarital partner, these “freebies” should be added back to the ex-spouses income as additional non-taxable income. The Court of Appeal has specifically criticized this approach which characterizes as income "anything that reduces living expenses” in so far as it relates to new mate income.
Spousal support and new mate income
If you are paying spousal support, with the enactment of Family Code 4323 (b) in 1993, the income of a new spouse or non-marital partner cannot be taken into account in calculating spousal support. There is no comparable extreme hardship exception as in the case of child support. The Court of Appeal has strictly construed this provision so that new mate income cannot be taken into account directly or indirectly by virtue of the fact that it may increase the payors disposable income because the new mate pays the payors living expenses.  Even if the new spouse causes an increase in the payor’s living expenses, that cannot be taken into account.
The situation is very different for the ex spouse receiving spousal support. Unless otherwise agreed in writing, re-marriage of the supported spouse terminates spousal support. Further, co-habitation with a new partner creates a rebuttable presumption of a decreased need for spousal support. The ex spouse must then prove that the co-habitation has not affected his or her need for support.
© 2008 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
 In Re Marriage of Wood (1995) 37 Cal.
 In Re Marriage of Loh (2001) 93 Cal.
 In Re Marriage of Romero (2002) 99 Cal
 Family Code section 4323 (a)(1) refers to co-habitation with a member of the opposite sex. The California Supreme Court’s recent decision legalizing same sex marriage broaden this to same sex co-habitation.