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: http://www.mass.gov/courts/selfhelp/family/child-support-guidelines.html). 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.
(c)2016 by Law Office of Leila J. Wons, P.C. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. In accordance with rules established by the Supreme Judicial Court of Massachusetts, this blog must be labeled "advertising."
