Thursday, January 28, 2016

Can You Waive Child Support?

We are often asked if the parties to a divorce or child custody matter can agree to waive child support for their children. The answer to this is not as black and white as one may think, and it’s important to understand Massachusetts law regarding child support prior to making a final decision.

Child support is governed by M.G.L.c. 208, sec. 28 and the Massachusetts Child Support Guidelines (found here: The guidelines are comprehensive and easy to read, providing over 20 different sources of income that would be included in one’s income for calculating child support. In short, any form of income is includable as child support, even if it is not reported to the IRS, with the exception of income that is need-based. Once you have determined the income attributable to each party, you run the guidelines to figure out the child support order.

Often, when parents have shared physical custody and earn comparable incomes, the resulting child support order will be minimal, and the parties may elect to waive support altogether, while including language in their agreement that they will share the children's extracurricular and uninsured medical expenses equally, as well as provide for everything the children need when the child is with him/her. Other times, the child support order is more substantial (either because one party has primary physical custody or because there is a disparity in income), but the parties agree to offset the child support by paying for the children’s other expenses disproportionately. In addition, the parents may agree to share certain expenses that would not automatically be ordered by the court (like summer camp, after-school care, hair cuts and clothing). Another popular option is to characterize the payment of support as alimony instead of child support, due to the tax advantages that paying alimony can have. This is especially beneficial when children are older and alimony is likely to be ordered in the future, as it saves the parties from having to go back to court in a few years to recalculate support. 

In the above scenarios, child support appears to be waived, but there are provisions in place for the children’s maintenance. These are common scenarios that would likely be approved by a court, as they ensure that the children’s needs are met, and that the children enjoy a similar lifestyle in both parent’s homes.

What will not be approved is an agreement that waives child support without making other provisions for the children’s maintenance. This is because public policy dictates that dependent children be maintained as completely as possible from the resources of their parents. If one party isn’t paying support and is not otherwise providing additional resources for the child, then that party is not adequately supporting his or her child.
            Further, parents can never permanently agree on a child support order (or agree to permanently waive child support).  A parent can always go back to court and try to modify the child support order, or establish a new one if child support was previously waived. This is because a parent may not bargain away the rights of their children to support from either one of them. See Okoli v. Okoli (No. 1), 81 Mass.App.Ct. 371 (2012). As such, a modification of child support can be obtained even if the parties have put into their agreement that they are waiving child support.

             If you need to establish or review a child support order, contact Attorney Leila J. Wons to schedule a consultation at her Westborough office and review your child support needs and rights. 

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