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The Second Time Around Could Ring Your Bell: The Dangers of Child Support for the Non-Owing Spouse

By: Shannon Luschen and Joy Feinberg

Beware: If you are married to someone who pays child support, your income now can be combined with your spouse’s income for purposes of calculating your spouse’s child support obligation.  Illinois has ventured into new territory with In re Marriage of Rushing. In Rushing, the appellate court affirmed a trial court child support decision that calculated child support by combining the separate net incomes of the father and his current wife and then applying the somewhat new Illinois guidelines to this combined total.

Here are the facts: Mr. Rushing had not paid his reduced child support obligation of $200/mo from 2010 up through the time of trial in mid-2016.  He was off to a bad start.  Mr. Rushing claimed that the parties had agreed to terminate his child support entirely – something his former wife admitted.  {This oral agreement was never entered as a written court order.  Even the admission of the oral agreement by the ex-wife was insufficient to protect Mr. Rushing from having to pay the accumulated unpaid child support arrearage – consistent with long-held case law in this area.}   He reported monthly expenses that far exceeded his monthly income – a scenario that requires an explanation or suggests an additional source of income from somewhere else, such as his current wife.  Mr. Rushing’s current wife earned over $300,000 annually, enabling him to live well while ignoring the lifestyle of his children or their household.  The court determined that the father had ample resources from which to pay his child support obligation, including his current wife’s income, in its calculations of child support.  Mr. Rushing’s claim that he and his wife separated (albeit while living in the same home) was insufficient to change the inclusion of her income in this calculation; however, if there was an actual separation or divorce, Mr. Rushing was free to bring these matters to the attention of the court at the time such facts arose.  See In re Marriage of Rushing, 2018 IL App (5th) 170146.

The old law: Traditionally, Illinois courts held that the financial status of a new spouse may not be considered when calculating a child support obligation. See In re Marriage of Keown, 225 Ill. App. 3d 808, 813 (Ill. App. Ct. 1992). The long-standing justification for this rule was that new spouses are generally under no legal obligation to financially support their step-children. Illinois law even states that:

“[n]either husband or wife shall be liable for the debts or liabilities of the other incurred before marriage, and (except as herein otherwise provided) they shall not be liable for the separate debts of each other, nor shall the wages, earnings or property of either, nor the rent or income of such property, be liable for the separate debts of the other.” 750 ILCS 65/5 (West 2014).

Despite this, courts have held that the financial status of a current spouse could still be considered when determining “whether payment of support would endanger the ability of the support-paying party and that party’s current spouse to meet their needs.” In re Marriage of Deike, 381 Ill. App. 3d 620, 627 (2008). This notion of equity allowed for courts to consider how a new spouse’s income could “free-up” the support-paying spouse’s income to the extent that that spouse could then pay more of his or her own income as child support. Courts then use these equitable principles to deviate from child support guidelines after finding, among other things, that the child support paying party’s “resources and needs” warranted such a deviation. 750 ILCS 5/505(a)(2)(b) (West 2016). “Resources,” as applied here, has been long construed as a broad term that could encompass all of the money or property to which a parent has access, including a new spouse’s income or property. See In re Marriage of Drysch, “314 Ill. App. 3d 640, 644-45 (2000). Under this theory, the income of a new spouse can be considered when setting a child support obligation to the extent that it warrants a deviation from the guidelines that would have been applied against the spouse’s separate income for support purposes.

So long as equity requires it, courts may now require spouses to financially support their step-children to some extent. Spouses married to those paying child support need to be wary of this trend.