Fathers can be ordered to pay child support to the mother of their child even when the parents were not married when the child was conceived. If the father signs a voluntary declaration of paternity–admitting that he is the father of a child–or the mother otherwise proves the identity of the father, he can be ordered to pay support until the child turns 18.
But what happens when a father later marries the mother of his child whom he has been ordered to pay child support to? Any payments of child support that mother was entitled to but didn’t receive before the parties married can be collected by the mother if the two later separate.
However, is the mother automatically entitled to receive new payments of child support under the previous order if the parties later separate?
In the recent case of In Re Marriage of Wilson, the California Court of Appeal held that the a child support order based on a finding of paternity is nullified when the parents marry. Thus, the mother was not automatically entitled to new child support payments under the previous order when she later divorced father. The mother must file with the Court in order to seek new orders for payment of support.
To put it another way, if a couple were to marry, have a child, and then divorce, the parent not given primary physical custody would likely be ordered to pay child support. If that couple were to get married again, the child support order would no longer exist because the obligation to support would be implied by the couple’s second marriage and the Court would no longer have jurisdiction over the parties.
This is the rule the California Supreme Court decided in Davis v. Davis, 68 Cal. 2d 290 (1968)–that upon re-marriage, a couple assumes a joint right of support and custody of the children. The individual parents no longer have separate support obligations. Thus, any support order that existed before the parties re-married will not remain in effect if they later separate. The parties must seek new orders of support.
If you need to seek child support after separation, you should consult with an attorney so that you can take the necessary steps to protect your rights. Call Paul D. McGuire at the Law Office of Paul D. McGuire to schedule a free consultation and learn what options you have.