Child Support by Agreement
It's common for a judge to decide on child support. However, parents can also reach agreements between themselves on child support. There are two ways that a child support agreement can be reached outside of court:
- Parents can reach an agreement using informal settlement negotiations.
- Parents can use a form of Alternative Dispute Resolution (ADR), such as mediation or collaborative family law.
Child Support by Agreement: Informal Negotiations
Some parents want legal advice, but it's not mandatory. If parents are willing, they can negotiate their child support agreement with or without the assistance of attorneys. The issues that must be decided include:
- Who will pay
- The amount of child support payment
- The frequency of payments
- How long will child support continue
- Covering any additional items beyond basic financial support
Items Beyond Basic Support
Parents can outline specific items for the agreement to cover. This may include:
- Educational expenses: private school, college, extracurricular activities
- Medical expenses: health care and health insurance, dental expenses
- Child care expenses: child care, daycare, summer camps
In some cases, parents may prefer to have their attorneys handle the negotiations. Or parents may negotiate themselves and then consult with their attorneys before finalizing the child support agreement and submitting it to the court.
Child Support by Agreement: Alternative Dispute Resolution (ADR)
ADR processes are less adversarial, which can facilitate early settlement. With mediation and collaborative family law, parents and their attorneys have an active role in negotiating key decisions. With a skilled mediator, even couples in conflict can find ways to work together. But both parties must have the willingness to try.
Although rarely used in family law cases, arbitration is another ADR option. In arbitration, a neutral third party decides after hearing each side's evidence and arguments. The arbitrator's decision in a child support case is not necessarily final. The parties can still resort to family court.
Finalizing the Child Support Agreement
If parents reach an agreement through negotiation or ADR, one of their lawyers will prepare a written agreement. The agreement may be called a "settlement agreement." If child support is part of a divorce, it may be called a "divorce agreement" or "dissolution agreement." Child support can also be a part of a “separation agreement" or a “legal separation agreement."
The document is submitted to a judge for approval before entering a formal child support order. The judge will ensure the parents' agreement complies with state child support guidelines. The agreement also must be in the best interest of the child, like all decisions for children.
There may be an informal court hearing. During this hearing, the judge will ask questions to make sure each party understands the terms of the agreement.
The agreement will almost always receive court approval if the judge is satisfied that:
- The child support agreement was fairly negotiated,
- The parties voluntarily entered into the agreement, and
- The terms do not contradict state guidelines
In most states, the agreement becomes a binding court order or "decree." Parents (or other parties to the agreement) must adhere to it or face legal consequences.
For example, if a child support settlement agreement has become a court order, and the payor parent repeatedly fails to meet their child support obligation, the other parent can go to court to enforce the child support order. The non-paying parent could face fines, the loss of a driver's license, or even jail time if they do not pay their child support arrears.
If either parent wants to change it, they must file a motion to modify the agreement. For instance, circumstances may have substantially changed. This could be a change in the parents' income or a change in the parenting time. Suppose the non-custodial parent has changed jobs. They may want to lower the amount of support to line up with their new salary.
Get Legal Help From a Trusted Attorney
Ending a marriage, determining who gets custody of the children, and calculating child support can be emotionally exhausting. If you and your spouse can agree on the terms of child support you will find you have saved time and money. But ask a lawyer to review your child support agreement to minimize the possibility of a legal challenge by a judge. Find a qualified family law attorney near you.
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