The Impact of New Mate or Partner Income on Attorney Fees

As a San Diego Divorce Attorney, when a client remarries, he or she often wonders if their new spouse’s income will impact child support and spousal support. Recently, a client in the midst of a divorce in which status was previously granted (meaning the parties were no longer married) but the issues of spousal support and attorney fees were not yet resolved, who was about to remarry, asked about the impact of new spouse income on the issue of spousal and child support.

Previously, I blogged about the impact of new mate income on child support and spousal support orders. To summarize:

1) For child support, except in “extraordinary cases,” new spouse or non-marital partner income is generally not considered when calculating guideline child support, although the court may inquire into a new spouse’s income for the purpose of seeing how it would impact the remarried party’s tax filing status and tax bracket when calculating guideline child support.

2) With regard to spousal support:
(a) For the spouse receiving spousal support, spousal support usually terminates when he or she remarries, and there is a presumption of a decreased need for spousal support of he or she is cohabitating with a member of the opposite sex.
(b) For the spouse paying spousal support, the new spouse/partner income is not considered when determining or modifying spousal support.

After explaining this to the client, I was asked if the new spouse income would have any impact on the prior spouse’s request for attorney fees. The client wondered if the court would consider the new spouse’s income when considering the prior spouse’s request for attorney fees. My initial thought was there should not be any consideration of new spouse income, however after conducting some research, I found a 2009 case, Alan S. v. Superior Court , which held while new mate or partner income is generally irrelevant in child support matters, it is not statutorily irrelevant in pendente lite fee orders.

However, after a closer analysis of the underlying facts in that case, we believe the holding is limited to a narrow circumstances, as it was more of a case regarding how the court, in low and middle income cases, can achieve the legislative goal of assuring that each party has access to legal representation to preserve each party’s right.

In Alan S., after a string of custody hearings and orders, the trial court ordered Husband to pay $9,000 to Wife for her attorney fees at rate of $300 per month. Representing himself, Husband appealed the decision challenging the attorney fee order. Husband claimed the order impacted his own ability to retain counsel.

The Court of Appeal found that the challenged orders appear to assure that, while Wife is well represented by obviously able and diligent counsel, Husband will be left to “haplessly flail away” and reversed the attorney fee order, with directions to the trial court to hold another hearing to consider all relevant matters affecting Wife’sfee request, including factors such as Husband’s $800/mo deficit financed by credit cards; the assets of parties, including equity in residences; Husband’s inability to afford to visit the children; Husband’s $25,000 credit card debt for previous attorney and $1,800 per month child support obligation; and the new mate or “significant other” income of each party (Husband was cohabitating and Wife had remarried).

The Appeal Court’s decision relied on Family Code §2032, which requires court to consider parties’ needs considering the factors listed in Family Code §4320. Reading statutes together, the Appeal Court believed the statutes make it clear that the pendente lite fee award should be the product of a nuanced process in which the trial court tries to get the ‘big picture’ of the case, i.e., ‘the relative circumstances of the respective parties’. In the Alan S. case, the trial court took a truncated approach, and the record did not show that the trial court considered a number of the relevant factors bearing on the case, including the new mate or “significant other” income of each party.

The Court of Appeal also relied on a case called In re Marriage of Geraci , in finding that the new mate or significant other income was relevant for attorney fee awards because of “possible economies of scale,” coupled with the “expansive language of Family Code §2032–the relevant circumstances of the respective parties.”

The case was remanded to the trial court. The trial court, on remand, would have to consider new mate and significant other income (among other factors) when reconsidering the attorney fee award, however, the final orders that were made by the trial court are unknown.

It seems that new spouse or significant other income only came into play in the Alan S. case because the attorney fee award prevented Husband from being able to afford to retain counsel for an upcoming custody hearing, while Wife was able to afford to retain counsel. More significant than new spouse or significant other income are the issues of need and ability to pay under Family Code Section §2030, as well as many of the other Family Code §4320 factors, such as the income, assets and liabilities of the parties.