Thursday, May 15, 2008

Be Careful - You Usually Cannot Waive Child Support

Sometimes parties attempt to negotiate a divorce, custody or child support case and allow one party to be "relieved of their obligation" to pay child support in exchange for something else. For example, I remember one case where a husband came to me after mediation. He had agreed to allow his wife to keep the majority of the marital assets, which mainly consisted of a great deal of money from the sale of the marital residence. In exchange, the wife agreed to accept a much lower child support amount than the guidelines allowed. The parties settled their divorce on that basis. The husband had not consulted with an attorney before agreeing to this arrangement.

Very soon thereafter, the wife petitioned for an increase in child support and of course that increase was granted. Generally, the courts do not recognize any type of waiver of child support or agreement not to pay child support. Accordingly, in that case, the husband had already given up most of the marital assets. That could not be undone. He was than faced with a much higher child support amount than he had anticipated. This placed him in a financially unfeasible situation.

Recently, the Court of Common Pleas in Bucks County faced a similar issue. Father had custody of the children and Father waived his right to file child support against Mother in their divorce agreement in July. However, as often happens in these types of cases, Father went and filed a petition for child support in September (just a few months later!) and that petition was granted. Mother, of course, appealed, stating that Father had waived his right to child support. However, the court noted that parents have a duty to provide for their children and one parent cannot contract away or waive the right of the child’s representative to seek adequate support from the other parent.

In the rare case, a waiver of child support could be enforceable, as long as the welfare of the children is not prejudiced. By way of example, in some extremely high income or high asset cases, a parent could waive child support in exchange for an extremely high lump sum of money that is designed to provide for the children’s every need, throughout their minority. However, those cases are few and far between.

Before making any type of a waiver, or negotiating any type of bargain for relief, you should consult an attorney. In family law, many agreements are modifiable. You could suffer harm later, and that could have been avoided.

1 comment:

Anonymous said...

Child support is a fraud. Regular payments for a child's upbringing should be the sole burden of Woman and State, as they have usurped all Parental and Filial rights anyhow.