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Divorce Advice for Men | Fathers' Rights Divorce | Child Custody

Providing men with essential divorce advice, fathers' rights divorce information and child custody articles. Dads Divorce is a community for men facing divorce or fathers' rights issues and run by Cordell and Cordell. Cordell & Cordell is a family law firm with a focus on men's divorce, child custody and fathers' rights divorce.
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by Ken McRae of Cordell & Cordell, PC
A divorce case does not necessarily end when the judge signs the divorce decree. Often one party is ordered to pay maintenance, also known as alimony, to the other party. If there are minor children then child support will usually be ordered. As circumstances change it is often necessary for one of the parties to ask the court to modify its previous orders regarding the amount or duration of payments.

A common situation has the former husband paying maintenance, child support or both. Questions arise when one of the parties later marries or begins living with a new partner. The consequences of remarriage are worth considering. This article will address common concerns regarding how this change of circumstances affects the payment of child support and/or maintenance.

 

 

1. If my ex-wife gets remarried does it impact my child support?

In most cases remarriage will not have any impact on child support. The new husband is not legally responsible for the children. The children are the responsibility of their parents. The court will base child support on the incomes of the parents. This often raises problems when the children’s mother marries a new husband who is wealthy. The father may have a tight budget and paying child support is a financial hardship. Meanwhile, the ex-wife and children are living an affluent life. Because the children are well taken care of by the mother and step-father the father feels his support is not necessary, at least not at the level he has been paying. The court will not usually be persuaded to reduce child support. The children remain the responsibility of their parents. The court cannot force the step-father to provide for the children and will not take his income into account. In extremely rare cases a court might grant the father a reduction from his child support if the parties’ financial conditions suggest it is in the best interest of the child or children. (For example, if the mother and step-father live rent and mortgage free in an inherited property). The burden for this type of adjustment is very high and the reduction will not usually be granted. The situation changes dramatically if the mother’s new husband adopts the minor children. In this scenario the step-father becomes a legal father to the children and is now required to provide for them. The natural father is no longer responsible for ongoing support of the children. There are two things to keep in mind about adoption. First, the adoptive father will be responsible for future support but the biological father will be responsible for any arrears which accumulated prior to the adoption. Second, and more importantly, if the children are adopted the biological father loses his legal standing and is no longer entitled to parenting time with the children.

2. If I get remarried will it impact my child support obligation?

The same rules discussed above apply when the father gets remarried. The step-mother’s income is not counted when determining child support, only the income of the parents. Furthermore, the father is not legally obligated to support his step-children, if there are any. His income will not impact the child support calculations in his new wife’s case either. Child support may be impacted if the father has another child with his new wife. This is a factor which the court should take into account when reviewing the father’s child support obligation. Now his income has to support his current family as well as his children from the prior marriage. However, the maintenance reduction available will not be proportionate to the increase in family size. For example, if the father is paying child support for one child from a prior marriage then has a second child with his new wife, the reduction in his child support will be far less than fifty percent. Even though his older child is now only one-half of the total number of children, the support figure will be modify only slightly.

3. If my ex-wife gets remarried, or moves in with a new partner, do I still have to pay maintenance?

The answer to this question depends to a great degree upon the wording of your divorce orders. In many cases the ex-wife’s remarriage will terminate her prior husband’s obligation to pay maintenance. However, this is not always true. Maintenance is tax deductible to the paying party if certain requirements are met. One of the requirements is the maintenance must end upon the occurrence of at least one of a list of conditions. The listed conditions include death of either party, remarriage of the recipient or cohabitation by the recipient with another adult in a marriage-like relationship. The important fact to remember is the tax code requires at least one of the conditions to apply, not all of them. It is possible to draft a maintenance order which terminates only upon the death of either party and does not address re-marriage or cohabitation. T

his is why it is so important to look at the specific language in your divorce orders. Usually remarriage is listed as a terminating condition, but it does not have to be included. Co-habitation is often a trickier issue. It is relatively easy to prove a party has remarried. A search of public records or wedding announcements in the local paper may be enough to prove the point. There are not generally any public records of parties living together, however. It can be very difficult to prove cohabitation. If the two partners each maintain a separate address, even if one address sits unused, it may be evidence they are not cohabitating. At least one court has found the payment of rent by one of the involved parties to the other is evidence they are not cohabitating. The result is cohabitation theoretically will terminate maintenance in most cases, but the practical application is much harder.

4. If I get remarried do I still have to pay maintenance?

Unless you are marrying the woman to whom you owe the maintenance, the answer is yes. Even though you may be incurring more financial responsibilities by starting a new household you do not receive a break from your maintenance obligation for getting remarried. Each of the scenarios discussed above is meant to be illustrative. The facts of each case, and the law of the jurisdiction, are paramount considerations in modification cases. If you have questions about how the changes in your life will impact your maintenance or child support payments you should speak with a qualified domestic relations attorney in your area.

 

Ken McRae is a Cordell & Cordell, P.C. attorney practicing exclusively in family law in the firm's Overland Park, Kansas office.



Comments (9)Add Comment
0
Child Support Laws
written by charles gebhardt, April 27, 2012
I think that child support laws are freaking terrible when it comes to a fathers rights. It's all B.S. and everything is catered to women.
The financial impact of remarriage, Low-rated comment [Show]
0
Child Support Laws
written by Maryann, March 27, 2013
They absolutely ARE catered to women. I have raised my daughter alone with NO child support or assistance of any kind from her B-father and have survived just fine...even putting myself through school without debt. There are SO many programs to assist single mothers. Now that I am about to marry a single father, I see the CRAP that the legal system puts these men through. He doesn't qualify for squat. Everything is automatically given 51% to her. Housing, child support, medical, etc.. and any other aid. Its disgusting! We are busting our behinds just to stay afloat, while taking care of all 4 kids and SHE GETS BENEFITS for drinking and sleeping all day. Totally able bodied, but refuses to work. Why? Because the government caters to single moms...even ones who can work but would rather choose to get drunk and sleep all day.
0
Adoption of new spouse's children
written by Chris, May 08, 2013
If I am divorced and paying child support, remarry then adopt the new spouse's two children what impact will this have on current $3275.00 per month child support being paid for three prior marrage children?
0
...
written by ann, August 05, 2013
why when women have children by new spouse and asks for modification for child support by ex, why is only her income considered to support the new children instead of combined. in other words, she is given the advantage of supporting 3 children (2 by new husband) with figuring only her one income instead of only figuring her income for the one child by ex. this hardly seems fair considering if by chance he made $100,000 and she made minimum wage, but they calculated her to be supporting 3 children on minimum wage only. child support is a joke at times when they state they are thinking of welfare of child, but when visitation is withheld from spiteful mothers, they don't care of welfare of child then. perhaps if receiving support depended on abiding by visitation orders, you would see alot less of child abduction by parents.
0
help
written by Donna, May 28, 2014
My ex husband married a woman worth $42million. Prior to marrying her he was making $70-180K per year. He now makes $40k a year and is constantly traveling. He has our children approximately 6 days a month. I am a self employed business owner and earn approximately $20K per year.
With this marriage I am now going to lose support because they file jointly and new wife has 2 children.
I barely make it each month and they are jet setting all over the world on a constant basis.
I am not asking for more money but the reduction is significant . (like cut in half)
My children will go without a great deal and I will more than likely have to get a second job to make ends meet.
Tell me how this is in the best interest of the child? I can't afford an attorney and they have a powerful attorney at their disposal.
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Ex-wife remarriage
written by Darren Jones, July 09, 2014
My son will be 18 this month and has graduated high school. His mother (my ex-wife) makes over 100k per year and I make 1/4 of that. She is remarrying in September. Will I still be responsible for the remaining year?
0
Think Again
written by Amanda, July 18, 2014
The new wife's income DOES come in to play with 40% responsibility toward all of the father's bills. What about hers? And the ex wife is shacked up, just quit her job, and seeking more and more and more. This system is designed to force fathers into welfare, because you can't afford to work AND pay an able-bodied but lazy ex.
0
Willfully underemployed ex-wife is going through her 2nd divorce
written by Jay, September 06, 2014
Will my child support be calculated differently if the 'ex-wife' will be seeking alimony and child support from soon to be second divorce? It seems that she could do this over and over again without any recourse and just collect checks. What could stop a woman from just 're-upping' her benefit every 10 or so years. What a sham and shame she is. Sooner or later, I'm afraid that my daughter will learn an inconvenient truth about her mother or follow through the example. This is a reflection of how her grandmother was too, gathering years of disability fraud claims and depending on the welfare from others. Sad reality.

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