Second Spouse’s Income: Is it subject to child support?

After the divorce is final, and one or both spouses remarries, each will often question whether the second spouse’s income is a basis to modify a child support or maintenance obligation.

As a general rule, the second spouse’s income is irrelevant when the paying spouse remarries. Robin v. Robin, 45 Ill. App. 3d 365 (1st Dist. 1977). The first spouse, receiving maintenance or child support, would not be entitled to an increase due to the second spouse’s additional income, for that reason alone.

Nonetheless, where the first spouse receiving support petitions the court for an increase in child support or maintenance and alleges a “substantial change in circumstances” (e.g., increase in children’s needs, payee’s loss of employment), the second spouse’s income may be considered as a factor to prove that the paying spouse has the increased ability to pay. In re Marriage of McBride, 166 Ill. App. 3d 504 (1st Dist. 1988)

When the party receiving support remarries, any maintenance obligation terminates, according to the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/510. Unless, the parties otherwise agree, remarriage is considered a “terminating event.” As for child support, the marriage of the receiving spouse, on its face, is not per se a reason to decrease child support. As stated above in McBride, it may become relevant when it comes to assessing the totality of the financial circumstances of each party.

When remarriage occurs, litigants may also dispute to what extent the opposing party is entitled to “discover” or gain access to the information related to second spouse’s income or assets. For example, a party may subpoena the second spouse’s checking and credit statements. Your family law attorney should be able to navigate these challenges, protect you and your second spouse, and determine what, if any information, is subject to disclosure.

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