If you’re a divorced parent in North Dakota, you probably have a child support order in place. If you (or your co-parent) are thinking about remarrying, you might be wondering if that’s going to affect support payments. This article hopefully will give you some insight on the issue of remarriage and child support in North Dakota.
The North Dakota Department of Human Services established child support guidelines for use in determining child support awards. Income and the number of children are the primary elements for calculating support. Another important item is health care coverage for the child.
Some examples of the type of income considered are:
The guidelines also provide the obligor (parent paying support) with an income deduction for children he or she is supporting, who aren’t involved with the support order being considered.
For more information on the North Dakota child support guidelines, see the North Dakota Department of Human Services website.
If the court concludes that a parent who’s responsible for child support is unemployed or underemployed without a valid reason, it can attribute or “impute” income to the parent in calculating support under the guidelines. An individual is considered “underemployed” if his or her gross income is significantly less than the statewide average for persons with similar work history and occupational qualifications.
There’s a rebuttable presumption that the guidelines child support amount is the correct amount for any particular case. “Rebuttable” means that you have the opportunity to prove to the judge that using the guidelines in your case would be inappropriate. You have to prove this by a preponderance of the evidence, meaning that the weight of the evidence in favor of your argument is greater than the weight against it. In deciding whether to deviate from the guidelines, the court’s primary concern is the best interests of the child. The law provides other factors that the court may consider, some of which are:
If you believe that a child support order should be changed, you can request modification. However, to be successful, you must show that there’s been a change in financial conditions. For example, a change in income could give rise to a finding of changed circumstances. Courts will look at both parties' financial information, and then determine if, and how much, a support order should be changed.
Is remarriage a change in conditions or circumstances that justifies modifying a child support order?
In the past, under what is known as common law, a remarriage alone wouldn’t impact child support. The reason was that your new spouse had no duty to support your children from a past relationship. That continues to be the law in North Dakota today. So what aspects of remarriage, if any, might be relevant to a child support order?
Under common law, having a new child would have been irrelevant to an existing child support order. The theory was that your primary responsibility was to the children from your prior relationship. But that thinking has generally fallen out of favor. In fact, the North Dakota guidelines acknowledge that new children must be considered. You can see this in the fact that the guidelines provide an income deduction for other children, as mentioned above.
Also, even though the factors for possibly deviating from the guidelines don’t specifically include a new child, they don’t prohibit a court from looking at this either. So it seems reasonable to conclude that the costs involved in raising a new child might be a legitimate argument to make in a child support modification request.
As seen above, a new spouse has no duty to support a stepchild. However, the law provides that this may change if the child “is received into the stepparent’s family”. Apparently what this means is that if you take the child into your home, and your new spouse basically assumes the role of parent, he or she may then have a duty to support the child. Even though this doesn’t relieve the natural parents of their support obligations, it could impact the support landscape.
Additionally, under the guidelines, the income and financial circumstances of an obligor’s new spouse shouldn’t be considered as income for child support purposes. But that may change if, to a significant extent, these items are subject to the obligor’s control. An example of this might be where the obligor is a principal in a business employing the new spouse.
This article is only meant to give you an idea of some of the issues involved in remarriage and child support in North Dakota. If you find yourself in this situation, be sure to consult a qualified family law attorney with any questions you may have.