Full question:
My friend’s husband wants to pay child support out of the community property. But the child is not my friend’s and is born as a result of her husband’s affair with another woman. Can the husband pay for child support out of the community property?
- Category: Divorce
- Subcategory: Community Property
- Date:
- State: California
Answer:
In California a married person cannot use community property to pay child support for a child born outside the marriage. Such support obligation is considered as a debt incurred before marriage even though the court order granting support may be made during marriage. The law is stated in Cal. Fam. Code § 915 that reads:“(a) For the purpose of this part, a child or spousal support obligation of a married person that does not arise out of the marriage shall be treated as a debt incurred before marriage, regardless of whether a court order for support is made or modified before or during marriage and regardless of whether any installment payment on the obligation accrues before or during marriage.
(b) If property in the community estate is applied to the satisfaction of a child or spousal support obligation of a married person that does not arise out of the marriage, at a time when nonexempt separate income of the person is available but is not applied to the satisfaction of the obligation, the community estate is entitled to reimbursement from the person in the amount of the separate income, not exceeding the property in the community estate so applied.
(c) Nothing in this section limits the matters a court may take into consideration in determining or modifying the amount of a support order, including, but not limited to, the earnings of the spouses of the parties.”
(b) If property in the community estate is applied to the satisfaction of a child or spousal support obligation of a married person that does not arise out of the marriage, at a time when nonexempt separate income of the person is available but is not applied to the satisfaction of the obligation, the community estate is entitled to reimbursement from the person in the amount of the separate income, not exceeding the property in the community estate so applied.
(c) Nothing in this section limits the matters a court may take into consideration in determining or modifying the amount of a support order, including, but not limited to, the earnings of the spouses of the parties.”
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