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Child support and the limitations on private agreements

By Tom James, J.D.

The child support obligation is one of the oldest known to the law. Historically, it belonged only to fathers. Today, all parents are responsible, at least in theory, for the financial support of their children. The obligation extends equally to female parents as well as male parents; to unmarried parents, as well as married ones. Generally, the obligation does not extend beyond natural and adoptive parents, although a small number of states have imposed child support obligations on stepparents and grandparents under certain circumstances.

One of the principal sources of post-mediation litigation is the parties’ failure to understand that the obligation to support children arises by operation of law, not contract. It exists not because parents agree on it, but because the state, in its role as parens patriae (protector of children) has an overriding interest in ensuring adequate support for children. The state also has an interest in reducing the size of its welfare rolls. Thus, even though a married couple can enter into a binding contract concerning how their property and debts are going to be divvied up, the portions of the agreement concerning child support are not completely within their ability to control. A judge can choose to enforce or not to enforce a child support agreement, even if it is part of a voluntary, bargained-for exchange between two intelligent, well-informed adults.

This doesn’t mean that child support can never be part of an enforceable negotiated divorce settlement. It only means that the parties must be prepared to explain to the court how their proposal serves the child’s best interests, and they should be aware that an inadequate child support provision in a negotiated agreement might not be enforced even if the remainder of the agreement is.
One important corollary to this is that the right to receive child support cannot be waived. To put it another way, a waiver of child support is not enforceable, even if it is part of a negotiated property settlement or a court order. This is an extremely important thing to keep in mind when negotiating a divorce settlement.


Joanie and Chachi are in the process of negotiating a settlement of their divorce. Chachi doesn’t want to be bothered with writing out checks every month for the next eighteen years, so he agrees to sell everything he expects to be awarded in the property settlement and use the money he receives to make an advance, lump-sum payment of his entire support obligation if Joanie agrees not to seek more money from him in the future. Under the laws of most states, if Joanie later comes to have a need for more child support—even if the need is due to her imprudent squandering of the entire lump sum—then she can come back into court and ask the court to make Chachi pay more than the lump sum they had agreed upon. At that point, the fact that Chachi gave up valuable property in order to make the original lump sum payment is of no consequence to the court. Judges do not determine the right to child support on the basis of fairness to the parents; it is determined on the basis of the child’s needs.

In this respect, child support differs from spousal support. In many states, a waiver of the right to seek a modification of alimony (spousal maintenance) is legally enforceable. On the other hand, a waiver of the right to seek a modification of child support generally is not, even if the waiver was given in exchange for valuable consideration. Ordinary principles of contract law do not apply to the child support obligation. Accordingly, it’s usually a bad idea to use child support as a bargaining chip during a divorce negotiation.

That being the case, it is generally a good idea to address child support separately from other issues. The question then becomes, on what basis are parties to a divorce to decide on the amount of child support that is to be paid?
As a result of the federal Child Support Enforcement Act of 1984, each state has enacted a set of statutory guidelines for the calculation of child support. These vary from state to state, but they all provide some formula, or method, for calculating an appropriate award of child support, taking into account the child’s needs and the parents’ ability to pay. Ability to pay may be determined on the basis of actual income or, in cases where a parent is determined to be voluntarily unemployed or underemployed, it may be calculated instead on the basis of his or her earning capacity. In some states, the calculation is made on the basis of only the noncustodial parent’s income, but in most states the calculation takes into consideration both parents’ incomes. A state’s guidelines may be enacted into law by the legislature or they may be set out in an administrative regulation or court order.

In addition to the basic monthly amount, a court may order a parent to maintain health insurance for the child, pay all or a portion of uninsured health care expenses, and contribute to the other parent’s child-care costs. A court may also order a parent to maintain life insurance for the child’s benefit.

In most states, the statutory guidelines must be followed if the custodial parent is a recipient of public assistance. In non-public assistance cases, the parties have some leeway to agree on a different amount if they wish. Even in those cases, however, the guideline amount is presumed to be the appropriate amount, and parties wishing to deviate from them will need to be prepared to explain to the court how their proposal better serves the child’s interests.

In joint custody situations, courts typically arrive at an appropriate child support amount by calculating the child support obligation for each parent, subtracting the lower one from the higher, and ordering the parent with the higher one to pay the difference, usually in proportion to the amount of time during the year that the child is in each parent’s care.

Once a court issues a child support order, it is binding on the parties unless and until it is formally modified. A private agreement to modify a child support order that is not formally incorporated into a court order is not enforceable

Formal modification of child support is accomplished by serving and filing an appropriate motion with the proper agency or court. A showing of some relevant change of circumstances—such as increased or decreased earnings-- must be made.

Pursuant to a federal law known as the Bradley Amendment, a support order normally cannot be modified retroactively. That is to say, a modification normally does not become effective unless and until a motion to modify is served. There are some exceptions to this rule, such as where an individual was unable to serve and file a motion earlier due to a physical or mental disability. In general, however, a modification will be effective only from the time an appropriate judicial or administrative proceeding is commenced by motion, not earlier.


Ralph earns $2000 per month and has a monthly child support obligation of $1000. On April 1, 2002, Ralph’s employer demotes him to a part-time position earning only $900 per month. He explains the situation to his ex-wife Alice, who agrees, in writing, to reduce his obligation to $400 per month. A year later, Ralph receives a notice that his drivers license is being suspended for failure to pay child support arrears in the amount of $7,200. The next day, April 2, 2003, he files a motion to modify support, asking the court to reduce his child support and forgive the arrearage based on the April, 2002 demotion. Ralph has suffered no disability during the year. Under these facts, a court may order Ralph’s child support to be reduced effective April 2, 2003, but it cannot wipe out the $7,200 arrears, and it cannot order his license reinstated unless he makes satisfactory arrangements for payment of the arrears.

In short, a court generally cannot order a modification of support to take effect as of the date on which the change of circumstances occurred, but only from the date a proper motion to modify is served.

The same thing would be true if Ralph were to experience a significant increase in income. For example, if Ralph’s income doubled in April, 2002, but Alice didn’t get around to filing a motion to increase support until April, 2003, then she will only be able to collect increased support from April, 2003 forward. In either case, it is of utmost importance to serve and file a motion to modify support immediately upon any significant change of circumstance that would warrant a change in the child support amount. Reliance on a private agreement is misplaced, in this context, unless the agreement is made part of a formal court order.

Tom James, J.D., is an attorney specialized in divorce and mediation. His practice is in Cokato, MN. See his listing in this site’s database of professionals.

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