"What would those rare circumstances be?"
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My response:
An excellent question, Catch23. While it's very easy to ask, the question is difficult to answer. The question is also dependant upon the wide latitude and discretion of the court; e.g., what one judge finds as "extreme", another judge may not so find. These matters, as you read further, are explained to show just how much latitude a judge actually wields in such cases.
Prior to 1994, New mate income could be used in the overall calculation of child support. However, after 1994, new mate income has been deleted as an authorized rebuttal factor; it cannot be directly considered in the child support calculation "except in the narrow `extraordinary' circumstances" recognized by Ca Fam § 4057.5 [see Marriage of Wood (1995) 37 Cal.App.4th 1059, 1070, 44 Cal.Rptr.2d 236, 243]
The income of the obligor or obligee parent's subsequent spouse or nonmarital partner "shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award . . ." [Ca Fam § 4057.5(a)(1) & (2)] The only exception permitting consideration of new mate income in fixing child support is "extreme and severe hardship" to the child. Unless the supported child will suffer if the court does not look to the income of a new spouse or nonmarital partner, such income cannot be considered. [Marriage of Wood, supra, 37 Cal.App.4th at 1067, 44 Cal.Rptr.2d at 241]
The statute recognizes the following circumstances as noninclusive examples of an "extraordinary case" potentially warranting consideration of new spouse/nonmarital partner income in fixing guideline child support (Ca Fam § 4057.5(b)):
• A parent who voluntarily or intentionally quits work or reduces income (Ca Fam § 4057.5(b)); or
• A parent who intentionally remains unemployed or underemployed and relies on a "subsequent spouse's" income (Ca Fam § 4057.5(b)).
However, as noted above, the court may look to new mate income in such circumstances only in order to prevent extreme and severe hard-ship to the supported child. [Marriage of Wood, supra, 37 Cal.App.4th at 1067, 44 Cal.Rptr.2d at 241]
The above situations are simply examples of suitable "extraordinary cases." An uncodified statement of legislative intent makes clear that § 4057.5 does not lock trial courts into any standardized approach for determining whether a particular case is "extraordinary" so as to potentially warrant consideration of new mate income. I.e., this is another area under the statutory scheme where trial courts retain discretion. [See Stats. 1994, Ch. 1140, § 3--"It is the intent of the Legislature that the restrictions specified in (§ 4057.5) . . . are not subject to court standardization, but are subject to judgment on a case-by-case basis." (emphasis added)]
Indeed, that trial courts are supposed to approach the "extraordinary case" issue under § 4057.5 on a discretionary basis is further evidenced by the Legislature's express statement of intent that § 4057.5 "prohibit the establishment or use of any formula or local court guideline devised to determine when consideration of a subsequent spouse or nonmarital partner's income is relevant." [See Stats. 1994, Ch. 1140, § 3 (emphasis added)]
IAAL
