Remarriage and Child Support in West Virginia

By , Retired Judge

If you're divorced in West Virginia, and you have minor children from that marriage, the odds are that you have a child support order in effect. But what would happen to those support obligations if you decided to remarry? Would they be affected and, if so, how much of an impact would remarriage have? This article addresses the issue of remarriage and child support in West Virginia.

West Virginia Child Support Overview

West Virginia law provides certain guidelines used to calculate child support. These guidelines take into account both parents' adjusted gross income in determining a total support amount. The final support figure is reached by dividing the total child support amount between the parents in proportion to their income. Some of the sources of income considered are:

  • salaries, wages, tips, and commissions
  • pension plan payments, insurance contracts, and annuities
  • Social Security benefits, unemployment compensation, and workers' compensation
  • interest, dividends, or royalties
  • income from self-employment or the operation of a business, and
  • spousal support and separate maintenance receipts.

Some types of income are excluded, such as income received by other household members, like a new spouse.

There are other factors considered in calculating child support, including child-related medical expenses, and work-related child care. For more information on child support, see the West Virginia Bureau for Child Support Enforcement website.

The Court May Attribute Income in Certain Cases

If the court finds that a parent who is ordered to pay child support is voluntarily unemployed or underemployed, it can attribute or "impute" income to that parent. In determining whether to do this, the court looks at certain factors, such as:

  • work history
  • education and qualifications, and
  • physical and mental condition.

There are some unemployment or underemployment situations where the court won't impute income, and they can be found in Section 48-1-205 of the West Virginia Code.

Support Amounts Under the Guidelines Are Presumed Correct

There's a rebuttable presumption that a guideline support order is correct in any particular case. The fact that the presumption is rebuttable means that, under certain circumstances, it may be inappropriate to use the guidelines.

Wisconsin law provides several factors the court may consider in determining whether to deviate from the guidelines, some of which are:

  • special needs of the child or the support obligor (person paying support)
  • certain educational expenses for the child or the parent
  • families with more than six children
  • long distance visitation costs
  • the needs of another child or children to whom the obligor owes a duty of support, and
  • the extent to which the obligor's income depends on nonrecurring or nonguaranteed income.

Courts Can Modify Child Support

If you feel that your child support order should be changed, you can request a modification from the court. However, the court will only do this if you prove that there's been a substantial change of circumstances since the last support order was entered. Additionally, you have to show that this change was not contemplated at that time.

Is remarriage enough of a change of circumstances to justify modification of child support?

Certain Aspects of Remarriage May Impact Child Support

It's the law in West Virginia that remarriage, standing alone, isn't sufficient to justify modification of a child support order. However, it is a circumstance that may be considered when a court is deciding whether to alter an existing order. What are some of the aspects of remarriage that might tilt the scales in favor of modification?

A New Child Is One Factor to Be Considered

In the past, under what is referred to as common law, a new child had no effect on a child support order. The belief was that your primary responsibility was to the children from your previous relationship. Many states have changed their position on this issue, acknowledging that new children are also entitled to benefit from a parent's income.

West Virginia is among those states. You can see this in the factors that a court can consider in determining whether to deviate from the guidelines. One of the factors (mentioned above) is the needs of another child or children to whom the parent owes a duty of support. A new child falls squarely into that category. Therefore, the cost involved with raising a new child appears to be a legitimate argument to make in seeking modification of a child support order.

A New Spouse's Income Is Also Relevant

Since West Virginia specifically excludes a new spouse's income from being used to calculate child support, why should it be relevant to a child support modification request? The answer can be found in the state's case law, which holds that this income can be considered where the parent paying support benefits financially from the new spouse's earnings or property. For example, in all probability your new spouse is helping to pay the household expenses, such as mortgage or rent, utilities, and groceries. This obviously benefits you, because your spouse's contribution decreases the amount of your individual income that you have to apply toward those costs. That makes more of your income available for child support.

This article is merely an overview of the topic of remarriage and child support in West Virginia. If you find yourself in this situation, be sure to consult a qualified family law attorney with any questions you may have.

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