Can the court use a new spouse’s income to calculate child support?

Posted by: Teresa Reade

It is often a concern to parties on both sides of a child support order whether a new spouse's income will effect a child support obligation. It is well settled that a new spouse, or any non-parent, is not responsible to support a child. Krokyn v. Krokym, 378 Mass. 206, 215 (1979). The more difficult situation is when, and to what extent, a new spouse's income should be considered by the court in calculating the payor's child support obligation.

The Massachusetts Appellate Court has considered this issue several times and provided some guidance, but left it the individual judges to evaluate the facts of each case. In Silvia v. Silvia, 9 Mass.App.Ct. 339, 342 (1980) the court was asked to consider the income of the mother's new husband in modifying a child support order. The court concluded that the "income and assets of second spouses are part of the circumstances relevant to the ability of parents to use their own resources to contribute to the support of their children." Id.However, what that means in a practical matter was not made clear and often opened questions to attorneys and parties. How much income and assets should be considered? To what extent to parents need to use their own income before the court's look at a new spouse's income?

Recently, the Appellate Court reconsidered this issue. In Murray v. Super, (AC 14P-518) the court was asked to consider whether the weekly contribution from Mother's new husband should be considered as child support for purposes of reducing Father's child support obligation. The court found that the definition of income is flexible and left to the judge's discretion. Id, citing Casey v. Casey, 79 Mass.App.ct 623, 634 (2011). The court went on to state that in order to include a spouse's income in a child support calculation, the court must consider such facts as funds received, how funds are used, spouse's financial obligation, the effect on the lifestyle of the children and the parent, the discretion of the spouse to provide funds, and how the parent would support the children without these funds.

A judge may include the new spouse's income in calculating child support, but only in certain circumstances in which the income is consistent and relied upon, reduces the parent's liability and expenses, improves the parent's and child's lifestyle, and substitutes the parent's ability to support the child, such as in the case that the parent no longer works because of the income from the spouse, or the parent's income is used only for discretionary purchases and not for household expenses.