Waiver of Child Support
When the court orders one parent in a divorce to pay child support, it is a legal obligation to make this payment on time and in full every month. Failure to make these payments will have serious legal consequences. However, sometimes a unique situation may arise where the custodial parent is willing to waive child support payments from the non-custodial parent.
The parents’ reasons for the waiver of child support may include:
- The custodial parent may want to reach a divorce settlement quickly, and may not wish to be drawn into a legal battle over child support.
- The custodial parent may worry that by demanding child support payments, it will encourage the other parent to demand more custody timeshare.
- In some cases, the parents may enter into a mutual agreement that if one parent waives their right to receive child support, the other parent will give up their fight for the child’s primary custody.
Is a Waiver Legally Permissible?
Under California law, when a minor child is involved in a divorce, neither parent can legally waive their child support obligations. Section 4001 of the California Family Code says that the court can order one or both parents to pay for child support in case of a minor child. The child’s right to receive support from parents is inherent in the law, and parents cannot waive it.
No matter what is the relationship of the parents with each other (whether they are married, separated, divorced, or never married), they are legally obliged to support the child provided the paternity has been established. Even if the parents have entered into a mutual agreement to waive child support, it is not legally binding, and both parents will continue to have a legal obligation to support a minor child.
Any such agreement between parents could, in fact, have an adverse impact on their family law case. Your best bet in such matters would be to seek legal advice from an experienced family law attorney in Orange County who can explain you all the legal aspects related to child support and suggest the most appropriate alternatives available to you.
Legal Precedent in California
The California Court of Appeals in the case of Marriage of Ayo (1987) established that the legal obligation of parents to provide child support is far more important than paying off a common debt. While a debt is a basic good-faith obligation to pay, child support obligation goes beyond that. Overruling of child support is not possible because that would, in effect, go against the state laws and the past rulings of California courts.
Agreeing to a Lower Child Support Amount
Although a waiver of child support is not permitted, it is possible for parents in a divorce to enter into a mutual agreement for a reduced amount of child support than what the California state guidelines for support calculation suggest. The state guidelines are designed to indicate a baseline amount, which the court will go by unless there is a request from one of the parents to increase the child support amount.
The child support calculation as per the state guidelines takes into account:
- The monthly income of both parents
- The age of the child
- Whether the child has any special needs
- How much time the child will spend with each parent
Both parents can agree in writing to a lower child support amount and submit that agreement for the court’s approval. The court will focus on the child’s best interests, and will ask how the parent who will receive child support plans to compensate for the missing amount.
On the other hand, if the parents mutually agree to a higher amount of child support than what the guidelines suggest, this agreement will also need to be approved by the court. In this situation, judges most often have no objection and are likely to approve the parents’ agreement for a higher child support amount.
Retain the Services of a Dedicated Child Support Lawyer in Orange County
Although child support waiver is not permissible under the law, divorcing parents in California have substantial discretion in developing a parenting plan of their choice. They can also reduce or increase child support through mutual agreement subject to court approval.
A committed and compassionate child support attorney in Orange County will help you and the other party to arrive at an agreeable solution in these matters before your case goes to court. Your attorney’s goal will be to help ensure that you and your child’s best interests are served regarding child support whether through agreement or through a court order.