Will My Income Be Counted If I Marry Him & He Owes Back Child Support?
By Rob Jennings J.D.
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Marriage is an emotional partnership, but it's also an economic one. Once you get married, your new husband's financial issues become, at least in part, yours. Back child support, or child support "arrears," can create difficulties for your new economic partnership. Although your income and your assets probably won't be factors in your husband's child support calculation or his arrears, they could have a substantial effect on how a court handles those arrears.
Calculating Child Support
Child support law varies from state to state, but calculating support generally involves guidelines that take into account the incomes of the parties, medical insurance, child care and extraordinary expenses. Since you owe no duty of support to your husband's children, your income is typically only relevant to child support establishment if you and he have children together. But you do, however, have an obligation to support your husband himself. A judge might use your income, for example, as grounds to deviate upwards from the normal child support guidelines in a case where your husband earns barely above the poverty level.
Arrears are calculated by subtracting payments made from payments due. They can also be established for support due before the institution of an order, such as the time between the date your husband split from his ex and the date his obligation was decided. His balance may also include amounts for his share of child-related expenses, such as doctor copays, medicine or school expenses. If his arrears were adjudicated before you got married, his current order probably includes an extra amount to go towards back support. If he is current on monthly support and complying with the court order on arrears, your income may have no relevance at all. In some states, though, all marital income can be considered community property. Depending upon your state's laws on child support collection, your community property could be attached to pay down your husband's arrears.
While your income and assets are generally irrelevant to child support and managing arrears, there are a number of ways your finances could come into play other than figuring his credit for children you and he have together. Under the laws of most states, a noncustodial parent's tax refund can be seized to apply towards back child support; therefore, if you file jointly, you may lose a refund based on the joint return since it may be seized. However, you may file an "injured spouse" application with the IRS and have your portion of the refund returned to you. Some states also allow a new spouse's income to be counted in certain cases; California, for example, may count your paycheck if "excluding that income would lead to extreme and severe hardship to any child subject to the child support award." Some states may also consider your income if your spouse's child receives public assistance or your spouse intentionally became unemployed or underemployed, reducing his income, and relies on your income for support.
In many states, past due child support may create a lien against the obligor's real and personal property. Often, you can protect your separate, non-marital property by keeping it out of your husband's name. For example, keeping cars and real estate you own separately titled in your name may prevent them from inadvertently falling into the hands of the child support court.
- Ohio State Bar Association: Federal Tax Refunds Can Be Intercepted to Pay Back Child Support
- New York Divorce Report: Child Support: Is My New Spouse's Income Used To Calculate My Payment: Daniel E. Clement
- The Law Offices of Sinkin and Marvel: Is My New Spouse Responsible For Past Due Child Support?
- Michigan Family Law Attorney Ellen Paynter: Michigan Child Support
- California Family Code Section 4057.5
A practicing attorney since 2003, Rob Jennings has written fiction and nonfiction since 2005, with his work appearing in a variety of print and online publications. He earned his Juris Doctor from the University of North Carolina at Chapel Hill.