Whether your former partner is the custodial parent or the non-custodial parent, remarriage by itself doesn’t have any effect on the original child support agreement. The reasoning for that rule is simple—child support is primarily based on child’s needs, not the parent’s living situation.
Further, when either parent remarries, the new spouse doesn’t legally inherit any financial responsibility for the child. So, whether the new spouse has a high-paying job that improves your former partner’s financial situation or brings significant obligations and debts that complicate your former partner’s finances, the original child support agreement remains unchanged.
That said, there are exceptions to every rule, and there are some circumstances that may allow a parent to petition to modify or terminate the original child support agreement. Some prime examples include the new spouse wanting to adopt your child, or the new couple having children together. As such, it’s always a good idea to consult with an attorney before a custodial or non-custodial parent gets remarried to assess how the remarriage may affect your child’s financial support.
If your former partner is the custodial parent and you have limited or no contact with your child, the option is certainly on the table for the new spouse to adopt your child. Of course, the decision to permit an adoption lies with you, not your former partner or their new spouse. The courts will also need to assess whether such an action is truly in the best interests of the child.
If you agree to the adoption, you would be forced to relinquish your parental rights. Hopefully your former partner would still be willing to let you be a part of your child’s life, but they would be under no obligation to allow visitation. You would also lose the right to access your child’s medical records, consult with their healthcare providers, and make important decisions on their behalf. These responsibilities would all pass to the new adoptive parent.
In this scenario, you would also be relieved of your obligation to pay child support. The adoptive parent would assume financial responsibility for your child along with your former partner, and the original child support agreement would be terminated. Should the adoptive parent choose to divorce your former partner down the road, he or she would still retain financial responsibility for the child, and the court would issue a new child support agreement for the adoptive parent.
If your former partner has children with their new spouse, the court may approve a petition to modify the original child support agreement and lower the monthly child support payments. While this may seem unfair to you and your child, the law is clear that parents have a legal obligation to all of their children, and the rights of one child cannot trump the rights of another child.
Note, however, that the birth of a new child doesn’t naturally change the original child support agreement. In order to modify the agreement, your former spouse would need to file a petition with the court to modify the original order. The court would then assess the situation, calculate the reasonable support that’s necessary for the new child, and compare that against your former partner’s combined household income with their new spouse.
If supporting the new child under the original child support order places an unreasonable financial burden on your former partner, the court may modify the agreement and lower the child support payments accordingly.
That said, the courts are extremely reluctant to modify or terminate child support agreements. Your former partner would need to offer convincing evidence that providing reasonable support for the new child under the existing child support order would be financially impossible. On top of that, the courts would now consider the new spouse’s income and assets, so your former partner can’t make their argument based on their income alone.
While the birth of new children may warrant modifications to the child support order, your former partner’s new obligations to step-children do not. Just as the new spouse doesn’t inherit any financial responsibility for your child, your former partner doesn’t inherit financial responsibility for the new spouse’s children. It’s not uncommon to see non-custodial parents attempt to use the rationale of a blended family to petition for modification of a child support agreement, but such petitions are rarely granted.
Collecting child support arrears
If your former partner is behind on their child support payments, their remarriage may make it easier for you to collect unpaid child support through enforcement options. You can ask the state collection agency to intercept your former partner’s income tax returns from the IRS, and if they file their taxes under the status “married filing jointly,” the agency can seize the entire tax return. Considering that joint income tax brackets are significantly higher than single-filing tax brackets, that opens the door to collect significantly more child support arrears.
At the same time, the remarriage may negatively affect the state’s ability to garnish your former partner for unpaid child support. While federal law allows the state to garnish up to 65% of an adult’s wages for unpaid child support, that limit drops down to 55% of total wages if your former partner is supporting another family (per the Consumer Credit Protection Act).
Modifying child support
Child support orders are intended to be permanent. In most states, the agreement lasts until the child turns 18, or if the child is still in high school then until he or she graduates or turns 19, whichever comes first. That said, there are provisions that allow the agreement to be modified or terminated if one of the parents is facing financially devastating circumstances.
Under ARS 25-503, a parent that experiences changed circumstances which are “substantial and continuing” may petition for modification or termination of the child support agreement. The law is intentionally vague, but it’s generally understood that this includes job loss, major health insurance plan changes, and significant changes in income. For the latter, that includes positive and negative changes in income, so a parent that experiences a financial boon is just as liable for higher child support payments as a parent that loses income.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
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