Privary in Divorce Proceedings

Part One: Can my husband’s ex come after me for child support?

Many family law litigants worry that the income and assets of their new spouse will be discoverable in court or included in their own income figures. It is important to insulate new relationships from the stress and potential drama of litigation, and we at Dadvocacy understand this truth. Our Miami fathers’ rights attorneys have created this brief overview of when and if step-parent income can become relevant in family law litigation. If you have questions or would like to discuss your specific case, please call today to speak with an experienced Dadvocacy Attorney at (305) 371-7640.

When Step-Parent Income is Unimportant

Generally, step-parent income is not relevant. Florida law follows the “shared income model” in calculating the presumptive child support amount. The parents’ net income after allowable deductions are added together to determine the presumptive total amount of child support. For example, if both parents together earn $6,000.00 net per month, the presumptive total support amount is $1,121.00. If the father has the child more than 80% of the overnights and the mother earns $2,000.00, or 33%, of the parties’ total income, she would pay the father $373.67 ($1,121.00 x .33) per month as her contribution toward the child’s total support need.

The shared income model does not account for the income of other parties living in the home. For example, if the father lives with his parents or his new wife, their income would likely not be factored into his income level. However, the court has discretion to deviate up or down from the presumptive child support amount for good cause. If you are concerned that the court may deviate upward in your case, contact a Dadvocacy attorney today to schedule an appointment to discuss the specifics of your case.

When Step-Parent Income is Relevant

Florida courts have held that a step-parent’s income may be “material and relevant to the ability of the natural parent to discharge his or her duty to support.” This is only if the other parent can prove by clear and convincing evidence “that the remarried parent is unable to discharge the duty to provide for the needs of the child out of her or his own funds.” [Condon v. Condon, 295 So. 2d 681, 683 (Fla. 1st DCA 1974).] The court limits the step-parent’s ability to be pulled into litigation in order to reduce the conflict that litigation naturally brings and to prevent “undue harassment and disturbance of the new family unit and … an unseemly invasion of the new spouse’s privacy.”Id.

Exceptions to the Standards

There is an important exception to note: when assets are transferred to the step-parent. Although Florida courts have an interest in managing the scope of discovery allowed, there are two major caveats. One of which is the payor transferring assets, such as stocks and real property, out of his name to the step-parent. For example, if the payor transfers significant assets into his or her new spouse’s name, leaving no assets with which to satisfy the support obligation, then the new spouse’s finances are relevant to “the question of the ability of the husband to pay alimony and child support to the former spouse” because Florida courts “cannot condone the voluntary and deliberate divestment of assets by the husband when he is obligated to pay support to his former wife and children.” [Hayden v. Hayden, 662 So. 2d 713, 716 (Fla. 4th DCA 1995), as clarified (Nov. 15, 1995).]

The burden is on the former wife to make some showing that “the husband terminated or reduced his employment in order to keep from paying alimony and that he was relying upon his present wife for his living expenses in completion of the scheme” in order to allow discovery of the step-parent’s income. [Schneider v. Schneider, 348 So.2d 612, 612 (Fla. 4th DCA 1977).] That the payor relies on his new spouse to contribute to some living expenses is not enough to allow discovery of their income. [Vega v. Swait, 961 So. 2d 1102, 1103–04 (Fla. 4th DCA 2007)]

A second exception you must consider is when a business is jointly held. The other major caveat that causes Florida courts to allow step-parent finances to be discoverable is when the payor and the step-parent own a business. For example, if the payor owns a business together with his new wife and she is employed by the business, there should be a clear paper trail showing where the money earned by the business goes and how much is attributable to the payor. When there is a personally held business involved, the payor should be prudent in creating a sound business ownership document and maintaining records of the cash flow through the business to employees, creditors, inventory, and to himself. It is also advisable to have a prenup setting forth the ownership interest of the business. A scenario we see all too often is when step-parent owns a business and the payor is unemployed or makes a nominal income from the business. Judges see right through this tactic and may end up imputing income to the payor that is higher than his true earnings.

When the financial workings of a business are unclear and there are little to no W-2 records demonstrating the payor’s income, this can cause attorney fees to skyrocket because the court or the other parent can request that an expert come in and forensically evaluate the company in order to figure out the money trail. In one case we managed, the former wife asked for an upward modification of child support. The payor owned a new business and his new wife was employed as a bookkeeper for the business. The payor testified that he paid the new wife a ‘salary’, but this was not documented other than by frequent transfers in varying amounts from the business account into their joint checking account. There were no corporate documents, no W-2 records, and no spreadsheets detailing the money transfers. The payor was unable to prove what income was attributable to the new wife, so all business revenues net of expenses were imputed to him after the court gave multiple opportunities for him to prove his records.

Divorce Counsel for Fathers in Miami – Call (305) 371-7640

While step-parent income is generally not allowed to be discovered in family court litigation, there are important steps to take to prevent you from ever having to drag your new spouse into litigation, especially if your ex-spouse is an expert social media stalker or is well-connected to your family and mutual friends. Contact Dadvocacy today to speak with an experienced attorney about your case. We will do everything we can to protect your best interests from start to finish.