Can You & Your Wife Agree at Mediation Not to Increase the Child Support Payments in a Divorce?

By A.M. Hill

In many divorce cases, child support tops the list of items that must be negotiated before a settlement can be reached. If you and your spouse wish to make child support unmodifiable, you should check the law in your state to see if the courts have addressed such agreements. Each state has its own guidelines for calculating child support, and all states base their guidelines on the best interests of the child. While it may be possible to negotiate specific terms in your child support case, the outcome will depend on your state's laws.

In many divorce cases, child support tops the list of items that must be negotiated before a settlement can be reached. If you and your spouse wish to make child support unmodifiable, you should check the law in your state to see if the courts have addressed such agreements. Each state has its own guidelines for calculating child support, and all states base their guidelines on the best interests of the child. While it may be possible to negotiate specific terms in your child support case, the outcome will depend on your state's laws.

Agreement Might Not Be Enforceable

Ordinarily, child support can be modified if certain conditions are met. This is true long after the case is settled and child support is set. Whether an agreement to make child support unmodifiable will be upheld in court depends on your specific jurisdiction. For example, the Wisconsin Supreme Court has ruled that agreements prohibiting modification of child support are enforceable so long as the prohibition is for a limited period of time. By contrast, Nevada's Supreme Court held that such agreements are invalid as a matter of public policy.

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How Child Support Is Calculated

Each state calculates child support based on a mathematical formula. What gets included in that formula varies by jurisdiction. Some states use an "income shares model," which considers both parents' incomes. Other states follow the "percentage of income model," which only considers the non-custodial parent's income. Under federal law, each state is allowed to choose the calculation model it prefers. Some states allow parents to deviate from the guidelines, adjusting either up or down depending on the circumstances. A substantial deviation usually requires proof of why such a large deviation is necessary.

Why Modification is the Rule

Courts generally consider the best interests of the child as the primary factor in determining child support awards. Child support is not designed to reward one party or to punish the other. To ensure a child receives adequate support from both parents, courts allow child support to increase if the paying parent starts earning more money. On the other hand, courts protect the paying parent by allowing a decrease in support in the event of job loss or other substantial change in circumstances.

Satisfying Minimum Guidelines

Even if you are ordered to pay the lowest amount possible under your state's rules, you may be able to obtain a deviation from that amount. Keep in mind, however, that some states will override an agreement to deviate from child support guidelines if the custodial parent can later show that your circumstances have improved enough to justify an increase to the minimum guideline figure. In California, the custodial parent does not have to prove a change in circumstances to have the amount increased. Upon the filing of a motion to modify child support, the amount is automatically adjusted up to the minimum amount, or more based on the circumstances of the case.

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How Often Can a Person File for an Increase in Child Support After the Divorce Is Final?

References

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