I am often asked if parties can agree to simply waive child support in a divorce agreement. As a general rule (subject to a few exceptions,) the answer is NO. Generally, child support payments are for the ordinary expenses of food, shelter, clothing, education and medication needs for the children only. In determining child support, a court will look at all the following issues:
The Needs of the Children – For example, an ill or developmentally disabled child will often require a higher level of support than a healthy child.
The Age of the Children – Infants and younger children often cost less to support than older children. However, daycare costs, which can be significant, will also be taken into account.
The Ability of the Non-custodial Parent to Pay – The court will look at income from all sources when it decides on the amount of child support. Generally your ability to pay does not include calculations of bills and debts such as car payments, credit cards, etc. If the non-custodial parent marries again, the court will usually not look at the new spouse’s income. However, there are some exceptions. The court will consider a new spouse’s income if one of the following occurs:
(1) The parent paying the child support claims that s/he is unable to pay because of debts.
(2) “Voluntary Impoverishment” – The court may look at a new spouse’s income if the custodial parent claims that the parent who owes
the support has left a job voluntarily in order to avoid paying child support. You can’t quit your job to avoid a child support obligation.
(3) There is a claim that the parent paying child support is hiding assets.
The Earning Capacity of the Custodial Parent – Both parents have the duty to support their children, not just the paying parent. The court will also look at the earnings of the custodial parent. In particular the court will look at the resources which are available to support the children. The court may also look at your capacity to earn more money. The court may also consider the income of a new spouse when determining child support levels.
The Other Responsibilities of the Parents – The court will also look at the other lawful responsibilities of both parents. For example, if the non-custodial parent is paying child support from a previous marriage, the court will consider that obligation also. Necessities of life, such as rent and food will also be considered by the court. However, the court will not reduce child support payments to make it easier for you to pay discretionary obligations. For example, a parent cannot buy an expensive car instead of providing for his or her own children.
Child Support Guidelines
In 1990, the Maryland General Assembly passed a law requiring the courts to use Child Support Guidelines in all child support cases.The amount is the correct amount. However, you can argue that the Guidelines amounts are wrong.
Parents cannot agree to not support their children.The General Assembly decided that “the law and policy of this State is that the child’s best interest is of paramount importance and cannot be altered by the parties. A parent has a legal obligation to provide support for the child [in proportion to their gross earnings].”
The math to determine the Guideline amount is fairly simple.