Is It Wise to Waive Child Support?
When it comes to California’s divorce, one of the most important things to keep in mind is the well-being and security of any minor children. This means seeking out a fair child support and custody arrangement that will ensure the safe and comfortable care of the children after the divorce.
Some divorcing spouses may wonder if it is ever acceptable to the court to waive child support. There could be a few reasons why one would seek this. One spouse may hope that by waiving child support, the other spouse won’t seek custody or visitation rights. Likewise, one spouse can suggest waiving child support by telling the other spouse that he or she will not seek custody or visitation if an agreement can be reached to waive support. And in other cases, a spouse may fear that spousal support will be affected by child support.
Let’s take a look at what the law says in relation to child support first.
- The responsibility of the parents is first and foremost to support their children.
- The obligation to support the children is mutual, based on each parent’s ability, income and time, and in keeping with the best interest of the child.
- Child support may improve the custodial parent’s standard of living because that then improves the child’s standard of living. Child support would then reduce disparity in standard of living between the parents.
- Child support orders will reflect the high cost of living in California.
- California law will presume that the primary custodial parent already contributes a significant portion of his or her resources to the care of the child. However, this can be rebutted.
- Child support payments are made until the child graduates high school or turns 19, whichever occurs first.
Are You Worried About the Well-Being of Your Child After Divorce?
California Family Code states that parents may not agree to divest the court of its jurisdiction to order child support. In short, parents should not make agreements to waive child support, and if they attempt to, this could hurt the parent.
The legal standard in child support and custody hearings is “the best interests of the child.” Choosing to waive child support may not be considered in the best interest of the child, and the court may look harshly at the parent who proposed it. The law is very clear that both parents have a duty to support minor children.
Many divorcing spouses mistakenly assume that the obligation to support their children is simply a contract between the two spouses, and not an operation of the law. Child support exists not because two parents agree on it and enter into a contract, but because the state, as the protector of the children, has an overriding interesting in ensuring the adequate support of children. Spouses can enter into a binding contract about how they may divide their assets and properties, but any agreements pertaining to child support are not completely in their ability to control. Parents may negotiate a child support agreement between themselves, but the court can decide whether or not to enforce it.
Parents may enter into mediation or negotiation and reach a mutually desirable outcome. However, if that negotiated agreement includes inadequate child support, they must be able to explain to the court how that agreement serves the best interest of the child. Inadequate child support will most likely not be enforced, but the remainder of the agreement still could be.
The right to receive child support cannot be waived, even if it is part of a mutually agreed-upon settlement.
“Child support should never be used as a bargaining tool in a divorce,” says Encinitas family attorney John Griffith. “This will most always backfire, and the parent who attempted it can be painted in a bad light by the court. The court will always seek to first protect the interests of the child, and adequate child support is part of that. With this in mind, child support is a right of the child, and therefore the parents do not have the ability to waive this right.”
Because a minor child is typically not competent enough to be involved in child support decisions, courts are very reluctant to allow child support to be waived, even if both parents agree to it.
In short, it’s important to remember these important facts. Each parent is legally obligated to contribute to the financial well-being of their children. The right to receive child support belongs to the child, not to the parent. Until the children reach legal age, they rely on their parents and the court to enforce their right to financial support.
Divorce, child support, and custody are complicated issues. It is important to have an experienced attorney representing you, who will keep your best interest, and the care of your minor children, at heart. The attorneys at Griffith, Young & Lass have tremendous experience in protecting the interests of parents and children. Schedule a free consultation today by calling 858-345-1720.
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