The Effect of Remarriage on Child Support and Maintenance

If a party gets remarried following a divorce with children, the court will not consider the new spouse’s income when determining child support nor can the court order the new spouse to pay towards child support or maintenance.

Child support is based upon a parents’ income, the time the children spends with each parent, and whether a parent is financially supporting other children. The court may modify child support based upon a substantial change of circumstances sufficient to justify revision of the current child support order.

The court considers the following as a “substantial change of circumstances:”

1. Change in the payer’s income
2. Change in the needs of the child
3. Change in the payer’s earning capacity
4. Any other factor the court determines is relevant.

Based on the above, remarriage is not sufficient to show a substantial change of circumstances warranting a revision of child support.

However, there are limited circumstances in which a court may consider the fact that a party has additional income available to him or her through a remarriage. As cited above, subsection 4 is a “catch-all” provision that allows the court discretion as to the factors it weighs when determining child support. Therefore, for example, if a party claims he cannot afford to pay additional child support, the court may determine his general economic circumstances have been improved due to a remarriage and additional spousal income as a reason to modify child support. Or, if a payee claims that she needs additional support because she cannot meet her budget or the needs of the children, the court may consider the fact that a new spouse contributes to that budget when reviewing same.

Maintenance is entirely different. For maintenance, remarriage is a determining factor that stops maintenance payments to the payee if the payer: (1) has proof of remarriage, (2) requests that the court vacate the current maintenance order, and (3) sends a copy of the request to the payee. Remarriage of the payor does not affect maintenance payments at all and is not grounds for the payee to seek additional monies.

The bottom line: a new spouse has no obligation, either directly or indirectly, to support a child of a former marriage/relationship or to a former spouse.  There is no direct effect of remarriage on a child support or maintenance order.

29 thoughts on “The Effect of Remarriage on Child Support and Maintenance

  1. If a biological parent claims integent but his mother has assumed all of his financial responsibility, outside of child support, and his mother obtained ‘visitation’ through the court can I go after her for child support?

    • No but you can ask the court to “impute” income to the father for what he should be making and set support on that. If he fails to pay, he can be found in contempt. You really should consult with an attorney regarding these issues.

  2. Me and my girlfriend are looking at moving in together but are not sure how it will effect her maintenance? They have been divorced 3 years now but are going through a new financial agreement now as he keeps trying to lower her maintenance, he’s lowered it by half so far. He’s asked her to sign a new one as he is getting re married now. He’s stated that if she co habits or remarries then he will stop her maintenance, plus she currently gets 10% from the company profits which he also plans to stop. They have no legal papers written up for these shares he just tells her what she’s getting and what the profits were. Thanks for your help

    • Living in a marital-like relationship is definitely grounds for reviewing maintenance. However, it really is very fact driven and depends on a variety of circumstances. The logic behind the argument is that her expenses have been reduced and/or her ex-spouse should not have to help support a boyfriend. However, an analysis of her expenses or the circumstances, as well as the background of the case, may very well reveal that a reduction or termination of maintenance is not appropriate. She should seek the advice and review of an experienced divorce attorney who can go through all of the facts to provide an opinion on this. If she remarries, then maintenance automatically terminates by operation of law.

      By the way, his remarriage should have absolutely nothing to do with maintenance. And, in fact, it may cancel out any arguments regarding her marital-like relationship if he is remarried to someone who is bringing in additional household income which would improve his financial circumstances. While his new wife’s income is not included for purposes of maintenance, the court does look at general economic circumstances which is the same factor looked at on the marital -like relationship argument.

      As far as the company profits are concerned, again this is something an experienced divorce attorney needs to review.

  3. If an ex-spouse remarries, but the new spouse does not reside at the same residence as the spouse, will the new income be considered for child support purposes?

    • The new spouse’s income is never considered for purposes of calculating child support. That person does not have an obligation to support the child(ren). The only instance that a new spouse becomes a factor is if that new income generally improves the payor’s financial situation. For example, if the payor claims they cannot pay support because they are not working or cannot afford to but they have a spouse’s income to assist them in meeting their financial obligations.

  4. my boyfriend and I are thinking about getting married. will that effect the child support I receive from my daughters father?

    • No. Someone cannot voluntarily reduce their income if they have a child to support. In this scenario, the court would either hold her to the prior child support order or impute her previous income to her for purposes of setting child support.

    • I don’t know the circumstances, of course, and I don’t know who told you that but it is incorrect. A new spouse has no legal obligation to support the other spouse’s children. If a court rules otherwise, that would be an appealable decision. Sometimes, if a parent alleges they can’t pay a particular child support amount but they have a spouse who is earning substantial income, the court will find that the parent can, in fact, afford to pay. In other words, they will consider the “general economic circumstances” of the parent. But, aside from that type of situation, the new spouse’s income cannot be considered in the calculation of child support.

  5. My daughter’s father and I were not married and have a custody agreement in place. We agreed no one would pay child support because after the placement schedule was decided I would owe only $15/month (I would owe him even though I have more placement because my income is much higher than his) and we would figure that our on our own. I am currently engaged and am worried that getting married will affect our child support agreement. My fiancé makes quite a bit of money, will his income change anything about the child support that I could owe? Could it go up because I have the assistance of another person now? I read the above but am wondering if it’s any different because my daughter’s father and I were never married. Is there anything else that I should know or be concerned about?

    • No. Your new spouse’s income cannot be considered for child support as he has no legal obligation to support your children. The only time a new marriage is considered is if someone claims they cannot afford to pay child support. Then, the court can look at their “general economic circumstances” which can include additional sources of income, including a new spouse.

  6. My ex-wife and I had 50-50 placement after our divorce and I paid child support. Two years later she remarried someone in the military and he received orders to move out of state. To avoid a custody fight we agreed to to allow her to move under certain conditions, one of them being the child support being set at an agreed upon amount. After a 3-4 years my ex-wife agreed to move back to Wisconsin. She now ordered a review of child support payments, which technically in violation of our placement arrangement she agreed to. Can she do this?

    • Yes she can. Child support is always modifiable based upon a substantial change in circumstances. If you had an attorney during your last round of litigation, he or she should have explained that to you. And, since she moved back to Wisconsin, your placement agreement must be changed again anyway. The court would view this has you having the benefit of the reduced child support while she was gone. Now that she is back, this is certainly a substantial change in circumstances. I would encourage you to consult with an attorney to review all of the facts of your case.

      • The thing is she has NOT moved back to Wisconsin. Our agreement for her move was based on several conditions, including a reduced child support payment. So now she wants to still live out of state AND get full child support payments. So she’s basically back-dooring her way out of having to fight with me over placement since now there would be no penalty for her living out of state, which I would have never given up our 50-50 arrangement.

      • That’s the thing, she has NOT moved back to Wisconsin. She’s still living out of state. According to the agreement we filed with the court, we are to review and negotiate to make changes. She has told me she believes she can get more money from child support but keep our current standing agreement. So I’m afraid that she got me to agree to allow her to follow her husband’s military orders and now will back-door her way into full custody, child support and I’m stuck with paying more and NOT having my daughter.

        • I’m sorry but I am confused about your facts. You originally stated that you agreed she could move out of state with her military husband in exchange for lower support and now, 3-4 years later, she agreed to move back to Wisconsin. Now you are stating she is not or has not moved back. Either way, there may have been a substantial change in circumstances which allows for a modification of support. As I previously stated to you, child support is ALWAYS subject to review – you cannot negotiate that away. However, there may be factors one way or the other that support your position. I would not be able to tell you that without discussing this in detail and reviewing the last court order. Therefore, this is not really an appropriate forum to discuss details and give you legal advice. Again, you need to consult with an attorney who practices in your area. Most family law attorneys offer free initial consultations. He or she can go through everything with you and advise you as to what your options are. Good luck.

  7. I have 50/50 placement and custody with the ex wife. I am the payor because at the time of the divorce I made more . My question is she has since remarried and In February I have child support coming off from a child from a previous relationship my income hasn’t changed but she has since remarried and her household income has gone up . I know the new husband doesn’t have any obligation towards my children but again her household income has gone up and her financially being able to take care of the kids is better I also cover the insurance . Am I able to get my payments reduced in anyway ?

    • I’m afraid not. Her remarriage is not grounds for a modification of support for the very reason you cite – her spouse has no financial obligation towards your child(ren). If her child support is reduced because of that, you are essentially then forcing her spouse to pay additional monies towards your children. The only time “general economic circumstances” come into play is if someone is trying to make a claim they cannot afford to pay child support. Then, the court can look at other sources of income available to them. Beyond that, there is nothing about her remarriage that affects YOUR obligation. The courts pretty strictly uphold the amount set by the child support guidelines and there are not too many circumstances which would result in a deviation.

  8. I have custody of my child and the father supposed to pay support but does not due to he claiming he is not financially stable. He gotten married about a year ago or so and him and his wife own two child cares and a restaurant. Somehow he is lying to the courts still claiming he has no form of income. Is there anything I can do to have the courts look into this and reevaluate his support payments.

    • In this type of situation, I often engage in formal discovery to obtain additional information before I would go back to court. There are many options. For example, this could involve formal questions that he is required to answer called Interrogatories or Demand for Documents, a deposition (including of his wife) or even subpoenaing bank records, payroll records or other financial documents.However, to do this, you really need the assistance of an experienced family law attorney. Good luck.

  9. My fiance and I have a new born baby together he has three other children from a previous relationship (same mother for all 3 children) she wants to take him back to court to get more money, but we are struggling financially with our new born baby. We have shared custody, we get the three children Friday, saturday, and sunday. Would the court consider we have a newborn of our own at home? Or does it not matter that we gave a child together and live together based on his child support

    • Unfortunately, the court believes that “first kids come first”. You and your fiance knew about his other children and support obligations when you had your baby. Therefore, the court will not give any consideration to him for having another child.

  10. I am paying $15k/year maintenance to essentially equalize my income with my ex-spouse from a 23 year marriage. We have no minor children. My ex has an MBA and is, imo, underemployed. I have an extremely stressful $100k position (and anxiety and depression). I feel like it is harming my health (I believe that both my healthcare and mental healthcare provider would attest to this) and would like to get a less stressful job; likely making about the same as my ex ($70k). What are the chances that I can get my maintenance reduced or eliminated? I know this is a substantial change in income, but will it be viewed as willful under-employment? Do I need to be yoked to the plow until I have a heart attack? What guidance can you provide in seeking legal advice on this matter?

    • I’m afraid I cannot provide legal advice on this site. This is a complicated issue. Your best bet is to consult with an experienced divorce attorney who can review the facts of your situation and provide some guidance regarding your options. Good luck.

  11. my bf pays maintenance for his exwife. He has about 1 and a half year to go. If he marries me, will I be held responsible for that maintenance? can i be hurt financially by getting married? and if U buy property in the future, can that be taken away from me because we are married,?

    • The answers to all of your questions are no, especially if he only has a year and a half left. I suppose, theoretically, if he fails to pay and accumulates a lot of unpaid maintenance, there could eventually be some kind of lien on any property he owns, whether it is with you or by himself. But, that would be extremely rare and his arrears would have to be pretty significant for that to happen.

We welcome your comments or questions. We will do our best to try to respond. However, please be advised that we cannot give legal advice in this forum and all communications are for general informational purposes only. Communication should not be construed as forming an attorney-client relationship. This is an open forum and any information you provide may be posted and will not be held confidentially. By posting a comment or question, you are expressly giving consent for the publication of same. If you have any specific legal issues or concerns, we always recommend that you consult with an attorney in the county and state in which you reside.

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