Including Spouse's Income

[StampGirl]

What is the name of your state (only U.S. law)? California

Good morning.

I know we don't like "3rd Party" questions but this is for a very good friend of mine.

She married a man who has 2 small children from a previous marriage. He has visitation and Mom has physical custody and they have Joint Legal Custody. He is current on all child support even while being unemployed in the construction industry for the last 6 months.

A month ago Mom took Dad to court to raise his child support and to fight against the temp court order that they both reached in mediation AND signed AND the judge signed.

ETA: I have a copy of the court order here with me *putting it up against the screen* LOL
Custody was to be 50/50 with Dad getting EOW and lots of time in Summer and additional holidays to make it a true 50/50. Mom decided she didn't like it and hired an attorney. This all occured after a judge signed it as a temp order.

Court date came and Dad showed up with no attorney (stupid idiot!!) and Mom had an attorney. Dad showed that he was on unemployment and actively seeking employment etc. Judge told him he "was being well taken care of" (my friend is a very well paid corp tax accountant) as they live in an affluent area of Orange County. Judge proceeded to ask what kind of car his new wife drove and he drove. Weird. Then told them he was using his new wife's income (didn't have any idea what it was), Dissomaster program was "down", so judge GUESSED at what it should be. Basically he doubled the child support payment and added daycare on top of it. Nice eh?? Then continued it until May with the temp orders.

Orders come in the mail a few days later: Child support is $___ INCLUSIVE of daycare costs (that is a direct quote from the orders). Meaning that daycare was included in the child support so in reality his support payment went down. Weird again.

Now Mom is freakin out cause she is out about $400 a month.

Can she REALLY include the spouses income??? Mind you the house they live in was bought before they got married by my friend at a great foreclosure rate and they by no means, live high on the hog. He NEVER asked for a decrease due to unemployment either. He was happy to keep paying the original amounts.

Thanks

 

[jbowman]

I dont know if this applies to temporary orders. Dad better get on the ball though and learn his stuff so he doesnt get stuck with permanent orders.

CA Family Law Code
4057.5. (a) (1) The income of the obligor parent's subsequent
spouse or nonmarital partner shall not be considered when determining
or modifying child support, except in an extraordinary case where
excluding that income would lead to extreme and severe hardship to
any child subject to the child support award, in which case the court
shall also consider whether including that income would lead to
extreme and severe hardship to any child supported by the obligor or
by the obligor's subsequent spouse or nonmarital partner. (2) The income of the obligee parent's subsequent spouse or
nonmarital partner shall not be considered when determining or
modifying child support, except in an extraordinary case where
excluding that income would lead to extreme and severe hardship to
any child subject to the child support award, in which case the court
shall also consider whether including that income would lead to
extreme and severe hardship to any child supported by the obligee or
by the obligee's subsequent spouse or nonmarital partner.
(b) For purposes of this section, an extraordinary case may
include a parent who voluntarily or intentionally quits work or
reduces income, or who intentionally remains unemployed or
underemployed and relies on a subsequent spouse's income.
(c) If any portion of the income of either parent's subsequent
spouse or nonmarital partner is allowed to be considered pursuant to
this section, discovery for the purposes of determining income shall
be based on W2 and 1099 income tax forms, except where the court
determines that application would be unjust or inappropriate.

 

[StampGirl]

I dont know if this applies to temporary orders. Dad better get on the ball though and learn his stuff so he doesnt get stuck with permanent orders.

CA Family Law Code
4057.5. (a) (1) The income of the obligor parent's subsequent
spouse or nonmarital partner shall not be considered when determining
or modifying child support, except in an extraordinary case where
excluding that income would lead to extreme and severe hardship to
any child subject to the child support award, in which case the court
shall also consider whether including that income would lead to
extreme and severe hardship to any child supported by the obligor or
by the obligor's subsequent spouse or nonmarital partner. (2) The income of the obligee parent's subsequent spouse or
nonmarital partner shall not be considered when determining or
modifying child support, except in an extraordinary case where
excluding that income would lead to extreme and severe hardship to
any child subject to the child support award, in which case the court
shall also consider whether including that income would lead to
extreme and severe hardship to any child supported by the obligee or
by the obligee's subsequent spouse or nonmarital partner.
(b) For purposes of this section, an extraordinary case may
include a parent who voluntarily or intentionally quits work or
reduces income, or who intentionally remains unemployed or
underemployed and relies on a subsequent spouse's income.
(c) If any portion of the income of either parent's subsequent
spouse or nonmarital partner is allowed to be considered pursuant to
this section, discovery for the purposes of determining income shall
be based on W2 and 1099 income tax forms, except where the court
determines that application would be unjust or inappropriate.

Thanks

I dont' think this would apply as the Mom makes $40,000 a year. They made about the same amount of $$ when the initial order was done about 4yrs ago.

My friend's husband just wants to see his kids more. They already have a First Right of Refusal in their orders. She doesn't follow that one either. They are currently waiting the contempt hearing date as well. She violated some visitation, threats to kidnap the kids (they had no communication for over a week, kids told them that Mommy was going to move them away and they would never see Daddy again etc), etc.

Its been a rollercoaster to say the least. CPS has been involved as well on a few occasions. Right now Mom isn't looked to favorably on as she has filed false child support non-payment charges (she said he didn't pay when he did), false RO that were later dismissed etc.

Thanks again.

 

[jbowman]

Im confused. Your question was Can she REALLY include the spouses income??? This was the question I answered. It WOULD apply if dad is unemployed intentionally etc. Has nothing to do with mom's income.