The wife filed a petition to modify child support. The court considered the joint income of the husband and his current wife in assessing child support. Husband wanted the court to only look at his income.

The Trial Court did consider the current wife’s income, along with the husband’s. Husband appealed. The Appellate Court agreed with the trial court.

Traditionally, Illinois courts have held that the financial status of a current spouse may not be considered to ascertain the ability of a party to fulfill a child support obligation.

Nevertheless, there are instances where courts have found that equitable principles require the consideration of a new spouse’s income.

Likewise, it is appropriate for the trial court to consider the financial resources of a noncustodial father’s new wife where her resources have been commingled with those of the noncustodial father. Courts also have the authority to compel parties to pay child support at a level commensurate with their earning potential.

The separate income of a spouse can be relevant. To the extent that the spouse’s income frees up the parent’s income. So that the parent can pay more of his or her own income for the support of the child.

“Because of husband’s spouse’s income, the husband was able to have a home and minimal household expenses. And the benefits of a healthy income while he started a business. While he was earning his own income, although minimal. He had paid no child support for at least 5 years.

Under these circumstances, the husband had ample resources with which to pay support. But he did not. It is appropriate that his new spouse’s income be considered.

In re Marriage of Rushing, 2018 IL App (5th) 170146 (November 30, 2018).

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