New Remarriage And Second Families: The Affect On Child Support And Alimony
Ronald B. Rosen, Esq. &
Angie C. Hong, Esq.
Chamlin, Uliano & Walsh
West Long Branch, New Jersey
Whenever a marriage ends, all the parties involved, spouses and children, go through many changes and adjustments especially financial changes. These changes are often an outcome of long and tedious negotiations and ultimately acceptance. When one of the spouses contemplates remarriage, one does not readily see the consequences to the former, once intact, family. However, one cannot ignore the consequential issues as an outcome of a remarriage, especially when children are involved. As it will be clearly seen, the child support payment will be affected.
Child support following marital termination is necessary in order to ensure that “…a child’s basic needs are provided by his parents, who might otherwise neglect their responsibilities to maintain the child. Pascale v. Pascale, 140 N.J. 585, 590 (1995); N.J.S.A. 2A:34-23. There is no divorce between parent and a child.Zazzo v. Zazzo, 245 N.J.Super. 124, 130 (App. Div. 1990). When a new child is born of the second marriage, this child cannot be ignored in calculating any new or modified child support payment to the previous marriage.
Child support is a continuing duty and may be modified on a showing of changed circumstances. See, Lepis v. Lepis, 83 N.J. 139 (1980); N.J.S.A. 2A:34-23. Even if the former wife marries and the alimony is terminated or the husband remarries, the child support obligation of the husband to the former wife is not affected. The Court in Testut v. Testut, 34 N.J.Super. 95 (App. Div. 1955) held that an increase in child support was not unjustified even though the husband was supporting a second wife and child.
Upon divorce the wife and dependent children are entitled to be maintained on the same social and economic plane as they enjoyed during the life of the marriage, unless the husband’s subsequent financial condition through circumstances over which he has no control renders this inequitable. For purposes of consideration of the ex-husband’s capacity to maintain them, he should be treated as if he were simply living in a state of separation from his family. The obligation to support that family is paramount and the extent of the obligation measured in dollars is not to be limited or qualified by his remarriage. If it appears that his financial status is such that he can maintain his first family as its members were maintained prior to the divorce,
the fact that a second marriage makes it burdensome or inconvenient to do so or occasions a deprivation of some desired luxuries or conveniences, or makes it difficult or impossible to live in the second marriage in the style and on the scale that is income would permit if the primary duty did not exist, provides no basis for reducing outstanding support orders; nor does it stand in the way of an increase thereof if the changed circumstances of the first wife make this equitable. Id. at 100. (citation omitted) (emphasis added).
In Bartok v. Bartok, 52 N.J.Super. 266 (App. Div. 1958), the court held that the husband was not entitled to revision of alimony on a claim of changed circumstances because of his remarriage. In Wei v. Wei, 248N.J.Super. 572 (App. Div. 1991), the court also held that the husband who had remarried did not show changed circumstances requiring modification of alimony and child support. The court stated that “[i]t hardly supports the proposition that a second marriage by the party who has assumed the obligation to pay alimony and support under a property settlement agreement or a court order may be excused in whole or in part from those obligations by remarrying and voluntarily assuming additional obligations which may in part conflict with his undertaking in the divorce proceedings.” Id. at 575-576.
It appears that there is no relief for a payer who voluntarily remarries. However, New Jersey Child Support Guidelines now provide a way for a payer to make an application for a modification of current child support by taking the new child as an “Other Dependent Deduction.”
Child support – Other Dependent Deduction
Appendix IX-A, paragraph 10(a) of the New Jersey Child Support Guidelines provides a mechanism to apportion a parent’s income to all of his or her legal dependents, regardless of the timing of their birth or family association, (i.e. if a divorced parent remarries and has children, that parent’s income should be shared by all children born to that parent.)
Legal dependents include adopted or natural children of either parent who are less than eighteen (18) years of age or more than eighteen (18) year of age and still attending high school or other secondary school. We must also note that Stepchildren are not considered legal dependents unless a Court has found that the stepparent has a legal responsibility for the stepchildren. A party has no obligation toward the children of the other party by a previous marriage unless an in loco parentis relationship exists. Skribner v. Skribner, 153 N.J.Super. 374, 375 (Ch. Div. 1977).
The idea is that a newly born child of the obligor should not be jeopardized by that parent’s former obligation to the existing children. The Guidelines state that “Other Dependent Deduction” is part of an adjustment mechanism to apportion a parent’s income to all legal dependents including those born before or after the children for whom support is being determined.
In order to modify the existing child support amount based on birth of a new child, the following principles apply:
1. An adjustment shall be used only if requested by a serial-family parent and the income, if any, of the other parent of the secondary family is provided to the court.
2. If the other parent in the secondary family is voluntarily unemployed or underemployed, the Court shall impute income to that parent to determine the serial family parent’s obligation to the children in the second family.
3. This adjustment may be applied to other dependents born before or after the child for whom support is being determined.
4. Either custodial and/or non-custodial parents may request this adjustment.
5. The adjustment may be applied when the initial award is entered or during subsequent modification of the support Order.
Child Support Guideline Appendix IX-A states that the support schedules are based upon child-rearing expenditures averaged across the entire age range of zero through seventeen (17) years. The cost of raising children aged twelve (12) through seventeen (17) is approximately 14.6% above the average expenditures reflected in the child support schedule. Thus, when setting initial child support awards for the children between 12 through 17, the court may adjust the Basic Child Support Obligation by an amount up to 14.6%.
In order to calculate the “other dependent deduction” on line 2d of the child support worksheet, three worksheets must be prepared in order to determine the appropriate adjusted amount of child support taking into consideration, the second family.
Scenario
Family One
Peter Doe and Anne Doe were divorced on March 22, 1995. They have two daughters, Jennifer who is 15 years old and Nancy who is 13 years old. Both children reside with Anne. Peter is remarried and has another child with his present wife, Stacy. Peter and Anne have a parenting plan, which states that Peter is to have the children on alternating weekends.
Peter earns $1,000 per week as a consultant for the Department of State. Since Peter is a government employee, he has a mandatory retirement contribution of $50 per week. Anne earns $500 per week as a bank teller. The parents agreed to claim each child as dependent on their respective income tax returns. Both of the children are on Peter’s health insurance policy. Peter pays $50 per week for the health insurance policy, which covers five people (Peter, Stacy, Jennifer, Nancy and Peter, Jr.).
Family Two
Peter remarried Stacy on July 25, 1997. They have a son, Peter, Jr. who was born on November 17, 1998. Stacy works part-time as a teacher and only earns $300 per week. Stacy claims one withholding allowance for tax purposes.
Compute the child support obligation of the children of Peter and Anne. Peter earns a gross income of $1,000 per week and Anne earns $500 per week. The $50 mandatory retirement contribution is deducted from Peter’s gross taxable income on line 1a. Peter is also given credit for $20 for the children’s share of the health insurance premium on line 9. Peter sees the children two overnights every other week and is given visitation credit on line 19. This worksheet is prepared with two children born of the marriage using Sole Parenting Worksheet.
The Guideline states that Shared Parenting is used only if (1) a parenting plan that specifies parenting times and responsibilities must be filed with or ordered by the court and (2) the Parent of Alternate Residence (PAR) has or is expected to have the child for the substantial equivalent of two or more overnights per week over a year or more (at least 28% of the time) and the PAR can show that separate living accommodations for the child are provided during such time. Thus, Sole Parenting worksheet is used here.
The child support is calculated in the amount of
$196 per week for Jennifer and Nancy. However, the other dependent deduction will decrease this child support amount as will be seen in Worksheet #3.
Compute the child support obligation of the secondary family for Peter, Jr. Peter is earning $1,000 per week and Stacy is earning $300 per week. The $50 mandatory retirement contribution is deducted from Peter’s gross taxable income on line 1a. $10 for child’s share of health insurance premium is added to line 9 for Peter, Jr. The child support is then calculated as
$158 per week for Peter, Jr. This number will be listed on Line 2d under the “Other Dependent Deduction” on Worksheet #3.
This work sheet calculates the child support amount Peter needs to pay Anne after taking his new child as a deduction. After subtracting $158 per week for the other dependent deduction on line 2d, the new child support amount is calculated to be $161 per week as listed on Line 20. This is a decrease of $35 per week from $196 to $161.
The final calculation is then computed by taking the average of the original child support to Anne in the amount of
$196 per week (child support obligation without other dependent deduction) and his new child support obligation in the amount of
$161 per week (child support obligation with other dependent deduction). These two are added and divided by two, which gives the new adjusted amount of
$179 per week that Peter needs to now pay Anne for Jennifer and Nancy. This new amount is a decrease of $17 per week or $884 per year.
College Expenses
The Child Support Guideline Appendix IX-F Schedule shall not be used to determine either parental contribution for college or other post-secondary education expenses, or the amount of child support to the primary residential custodian for a child attending college. If there are unemancipated children who are eighteen (18) or younger in the family, then the Child Support Guideline should be first applied to said unemancipated children before determining parental obligation for the cost of post secondary education and or continued child support obligation for a child attending college or post secondary education. Contribution towards college expenses is determined based upon application of current case law, primarily a factor-analysis approach as set forth in Newburgh v. Arriago, 88 N.J. 529, 545 (1982).
The former children’s share of the payor’s ability to pay for college expenses will also decrease once a new child is born to the second marriage. As seen in the Worksheets, the father’s obligation to the two children of former marriage was 65.31% (Worksheet #1). Taking into consideration the “other dependent deduction,” the total percentage of the father’s contribution decreases to 59.82% (Worksheet #3). Since the percentage amount is indicative of the respective parent’s proportionate income and share of college expenses, the new family will have an impact on the funds available for college expenses for Jennifer and Nancy.
Each parent is required to pay a proportional share of the amount needed to support the children based on his or her ability to do so. See, Martinetti v. Hickman, 261 N.J Super. 508, 512 (App. Div. 1993). However, note that support is determined not just from the incomes of the parents, but the court can take into consideration the assets and property thereof, Enrico v. Goldsmith, 237 N.J.Super. 572, 576 (App. Div. 1990).
Impact of remarriage on alimony
Is remarriage of a recipient spouse a changed circumstance for the payer to end the obligation? The answer is yes to alimony. However, the recipient will be able to seek a modification of child support payment upon termination of alimony. N.J.S.A. 2A:34-25 states that “[i]f after the Judgment of Divorce, a former spouse shall remarry, permanent alimony shall terminate as of the date of the remarriage except that arrearages that have accrued prior to the date of the marriage shall not be vacated or annulled. A former spouse who remarries shall promptly so inform the spouse paying permanent alimony as well as the collecting agency, if any†.”
Sharpe v. Sharpe, 57 N.J. 468 (1971) held that where separation agreement incorporated in divorce decree provided for termination of alimony upon wife’s remarriage, alimony remained terminated, even though wife’s second marriage was voidable and was later annulled. The Appellate Court found that voluntary decision on part of former wife to enter into a ceremonial second marriage, which was valid until annulled, plus further decision on her part not to ratify such marriage once she obtained knowledge of her second husband’s impotency, constituted an election by her to substitute obligation of her second husband to support her in place of alimony from her first husband and relinquished her right to support from latter. The Supreme Court agreed that the wife should not be given the control over the source of support. See, Lepis v. Lepis, 83 N.J.139 (1980); Smith v. Smith, 224 N.J.Super. 559 (Ch. Div. 1988) (rehabilitative alimony is terminated upon remarriage of the recipient spouse, as of the date of the remarriage.)
The Court in Sharpe however did remand the child support issue to the trial court since “in determining the amount of support required for the children, it should consider the impact on their welfare of the loss of income their mother formerly enjoyed.” Id. at 471.
The child support modification is based on “best interest of the children.” Lepis v. Lepis, 83 N.J. 139, 157 (1980). The test for increase is “whenever changed circumstances substantially impair the dependent spouse’s ability to maintain the standard of living reflected in the original decree or agreement…” Id. at 152. The burden of proof is on the moving party. “The children are entitled to have their needs accord with the current standard of living of both parents, which may reflect an increase in parental good fortune.” Koelble v. Koelble, 261 N.J.Super. 190, 193 (App. Div. 1992) (citation omitted).
Alimony has a big impact on the child support calculation. The Child Support Guideline states that if child support and alimony are being determined simultaneously (for the same family), the court shall determine the amount of alimony before applying the child support guidelines. When applying the guidelines, the amount of alimony shall be deducted from the paying parent’s income and added to the recipient’s income to determine each parent’s gross income. This is a change from the old child support calculation. The payee can seek modification of child support once the alimony is terminated. One should note however that any changes in income of the custodial and non-custodial parent may affect the modification of the child support amount in the end even if the alimony is terminated.
As seen on Worksheet #4 and #5, the child support amount is affected. In these calculations, each parent is taking one child each as deduction. Peter is also given $50 per week mandatory retirement contribution as well as $20 per week in Children’s share of health insurance premium. Peter is also given visitation credit of alternating weekend visitation, which amounts to 52 days per year. Alimony is tax deductible for the payer.
Worksheet #4 with $100 per week alimony payment calculates the child support as
$156 per week. However, the Worksheet #5 without any alimony calculates the child support amount as
$179 per week. It appears that Worksheet #5 is more beneficial. However, Worksheet #4 gives the custodial parent more available net income per week since she is receiving alimony as well as child support.
Worksheet #
4-1 and
4-2 (with alimony)
Net Income Child support Total available net income per week
Anne $486 + $156 = $642
Peter $618 – $156 = $462
Worksheet #
5-1 and
5-2 (without alimony)
Net Income Child support Total available net income per week
Anne $401 + $179 = $580
Peter $684 – $179 = $505
Remarriage and alimony can impact the child support amount as well as total available net income for the parents. One does not and should not look at such numbers when contemplating remarriage but one cannot ignore the financial impact of remarriage especially when children are involved. A payer who remarries and now has a new dependent can seek modification of child support where the outcome will be a possible decrease in child support. A payee who remarries and the alimony is terminated, can seek modification of child support upon the theory of changed circumstances and the best interest of the child since both the payee’s and payer’s income level is changed.