- by John C McCaffery
- in More
If you are contemplating marriage to a person who has children from another relationship, there are many factors to consider. Among them are your current and future relationship with those children, the effect on child support, whether or not you want to adopt the children, estate planning adjustments, and the likely loss of alimony.
Your Relationship to the Children
The most important factor when marrying anyone with children is your bond with the children and what your parenting role will be after the marriage. It is critical to establish expectations prior to marriage to ensure that you, your future spouse, and the children are prepared for this marriage. Even if you are ready for the social and emotional issues that marriage with children brings, there are important legal implications for you and your intended to consider as well.
Impact on Child Support
Unless you are a millionaire or make so much money that your new spouse will be able to stay home or stop paying bills out of his or her income, your marriage should not affect child support. Under Georgia law, the amount of child support to be paid is based on each parent’s income and expenses. This does not include the income of any significant others or new spouses. Beware -- that does not mean the prior spouse might not be able to access all of the financial information of the well-to-do, new spouse. Keeping assets, income, and tax returns separate is the best way to avoid having to give financial information to the prior spouse. That doesn’t always make financial sense, so consultation with one of our attorneys is highly recommended.
It is also important to note that a court in Georgia is allowed to deviate from the typical child support formula in certain cases, based on a non-mandatory deviation. For instance, the other parent might file a petition to modify child support based on the grounds that the needs of the children are being met in the absence of his or her support and therefore the court should grant a non-mandatory deviation reducing or terminating their child support obligation. However, even under this scenario, assuming he or she has no other grounds for a reduction in child support, the petitioner would be unlikely to succeed because the court tends to believe biological parents should be responsible for supporting their children.
After your marriage, if your new spouse voluntary leaves their job, they won’t be entitled to an adjustment in their child support order since voluntary loss of income does not justify a modification of child support. For child support obligations to change based on this type of scenario, one or more of the following must occur:
- A loss of income that is not voluntary;
- Other financial changes that affect the payee spouse, such as health issues;
- A change in the needs of children;
- An action to modify child support brought by one of the parties (this one is mandatory);
- A request for any one of the non-mandatory deviations available under Georgia law and court approval of that deviation.
It is only natural that you will develop an affection for and attachment to your new spouse’s children. If you decide to adopt, the consent of the other parent, if he or she is still living, is required. If the other parent will not consent to waive his or her rights, then you will not be able to pursue adoption without going through the difficult process of requesting that parental rights be severed, thereby opening up a slot for the new parent. One way you can force termination is by proving to the court that the biological parent has not significantly interacted with the child or children, nor provided support, for a year or more.
For such a marriage to result in adoption, one of the following needs to happen:
- A death of the parent who is not a party to the marriage;
- A consent to terminate parental rights by the parent who is not married to the step-parent;
- A forced termination of parental rights by the court, brought for cause such as the failure to interact and provide for the minor children.
Although you plan for your marriage to last, you should also consider that adoption of your spouse’s children could make you responsible for child support payments if you eventually divorce. However, if you feel that your relationship is stable and you genuinely care for the children, this should not stop you from considering adoption, if you are able.
Be certain to discuss with your new spouse how you want to handle inheritances. These wishes will be easier to carry out if you work together to create a will and ensure that all assets have up-to-date beneficiaries listed. You may opt to list different beneficiaries on your personal assets or, particularly if you choose to pursue adoption, you may also elect to list your spouse’s children as your beneficiaries. In any case, take care that your spouse’s children are still cared for in his or her estate planning, as it is not uncommon for beneficiaries to remain unlisted and default to the spouse, which may not be what you or your spouse wish.
While it is not a requirement that a person have children to receive alimony from their former spouse, it often increases the likelihood that alimony is awarded based on a history of one parent stopping work or limiting their career to care for their children. If your future spouse receives alimony from their former spouse, depending upon how the court order reads, you need to understand that your marriage will trigger the termination of the alimony payments. For example, assume a man plans to marry a woman who has children with her former husband. She abandoned her career to care for the children. When she and her ex divorced five years ago, she was awarded ten years of alimony. Upon her marriage to her new husband, her alimony payments from her previous husband would cease. She would not, however, have to reimburse her ex for payments she had already received.
Even in the absence of a marriage, your intended’s alimony payments may be affected by cohabitating with you. There is a live-in lover statute in Georgia that allows cohabitation to terminate alimony.
Here is a summary of how alimony may be affected:
- Unless there is an additional agreement between the former spouses, subsequent marriages cause alimony to terminate;
- Alimony can terminate regardless of marriage if you and your intended have been cohabitating, although this is not an automatic termination. The person paying the alimony must petition the court to terminate alimony for cohabitation.
It benefits you to engage in a very open and forthright discussion with your intended spouse about their children. If they have any court orders that define their rights and responsibilities to their children (child support orders, a settlement agreement, and parenting plans), you should review those together as a couple and discuss what impact your marriage would have on those orders. You should also discuss with your future spouse what the role of the other parent has been in the children’s life beyond the court orders. For example, if the other parent has visitation rights, do they show up to visit with the kids
Contact an Attorney
Contacting the attorneys at Stearns-Montgomery & Proctor can help you enter into marriage with a clear plan for including and caring for your new spouse’s children. Working with an experienced family law attorney to clear up any potential legal issues prior to marriage can make it much easier to enter your marriage stress-free.