If you're a divorced parent in South Carolina, you probably have a child support order in place. If you (or your co parent) plan to remarry, you may want to know how a second marriage might impact child support payments. This article will explain how remarriage effects child support in South Carolina. If you have questions after reading this article, you should contact a local family law attorney for advice.
South Carolina law makes it clear that both parents have an obligation to support their children. The family court determines child support by applying certain established guidelines. The guidelines consider a number of elements in calculating support, including:
Additionally, the guidelines allow parents a credit for additional natural or adopted children living in their home. This does not include step-children, unless a court order establishes a legal responsibility for the step-child.
Once the court determines the total child support figure, the amount is divided between the parents in proportion to their income.
If the court finds that a parent is voluntarily unemployed or underemployed, it should attribute or "impute" income to that parent when calculating child support. In determining the amount of income to impute, the court looks at several things, such as:
It's a rebuttable presumption that the support calculated by using the guidelines is the correct amount. "Rebuttable" means that using the guidelines is not set in stone. In fact, the law provides that a judge may award a different support amount where applying the guidelines would be unfair or inappropriate. If the court deviates from the guidelines, it must make specific, written findings of the facts upon which it based its decision. Some of the factors the court will consider in making its determination are:
The court can also deviate from the guidelines if it finds that the income of the noncustodial parent (the parent with whom the children do not primarily reside) is significantly less than the custodial parent's income. This factor applies if the income difference makes it impractical for the noncustodial parent to pay the guidelines support figure.
Can you request a change of an existing child support order? Yes. If a party wants to modify a support order, that individual must make a formal application to the court. The general rule on modification in South Carolina is that one or more of the parties must show a substantial change in conditions or circumstances. Once a party makes the application for a support order change, the court will review the parties' financial documentation and other relevant facts, apply the appropriate law, and determine whether (and how much) a support order should change.
How does a judge know what a substantial change of circumstances is? South Carolina law provides that the same factors used to decide whether to deviate from the support guidelines can also be used to determine whether a child support modification is justified.
In South Carolina, a spouse's remarriage, in and of itself, isn't enough to justify reducing a child support amount. The reason is that ordinarily, a new spouse is not obligated to support your children from a prior relationship. But remarriage can give rise to certain situations that may impact child support.
In the past, under what is known as common law, having a new child would not affect a parent's existing child support obligation. However, the law today is trending away from that position, since it's now generally acknowledged that new children should also benefit from a parent's income. For example, in discussing calculating child support, above, you saw that parents can receive a support credit for additional natural or adopted children living in their home.
You'll also recall the list of factors relating to deviating from the support guidelines. One of them was a noncustodial parent's support obligations for other dependents living with that parent. A new child from a remarriage certainly falls within that category. And since a judge can use those same factors in determining whether to modify a child support order, a new child appears to be a legitimate consideration in a support modification application.
Even though a new spouse isn't obligated to support your children from a prior relationship, South Carolina courts have said that the trial judge can consider a new spouse's income in a support modification request, depending on the facts of each particular case. The reasoning appears to revolve around the possible improvement of a divorced parent's financial condition as a result of the remarriage. For example, a new spouse's contribution to household expenses typically frees up some of the parent's income, such that he or she will have more income available to pay child support.
The issue of remarriage and child support in South Carolina is a complicated one. Be sure to consult a qualified family law attorney with any questions you may have.