Edward R. Weinstein, Esq.

If We Both Agree, May New Jersey Child Support be Legally Waived?

In my family law practice, I routinely come across matters where one party, or sometimes even both parties, want to forget about the issue of child support. I have been asked on many occasions, “if we both agree, can New Jersey child support be waived?” The simple answer to that question is no. The issue requires a more in depth analysis though for a full understand of the matter. Let’s explore.

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Most people who are not attorneys in New Jersey do not realize that it has been well settled that the right to receive child support is the child’s right, not either parents’. A custodial parent (the parent with whom the child resides) brings a complaint on behalf of a child and not in his or her own right. As such, and for this reason, the right to child support cannot be waived by a custodial parent.

The Court also relies upon the State’s parens patriae interest in obtaining a proper level of support for all children. Parens patriae is a legal doctrine that allows the State to protect people, or act as a guardian for those who are legally unable to act on their own behalf, such as children. Public policy and the State’s interest in the welfare of children prohibit parents from bargaining away essential rights of their children. Based upon this, a judge has the authority to set or even modify child support despite what that child’s parents may have agreed to.

There has been a plethora of decisions by New Jersey Courts with respect to this issue. It has been addressed by the New Jersey Appellate Court in 2008 wherein it was reconfirmed that the right to child support belongs to the child and may not be waived by a custodial parent. The Court even held that an explicit waiver agreement cannot vitiate a child’s right to support.

A party often then asks, “but what if my spouse and I agree in a written Property Settlement Agreement that no one will receive child support?” The New Jersey Family Court has addressed this issue finding that a father’s parental duty to support a child could not be waived or terminated by a Property Settlement Agreement incorporated into a Final Judgment of Divorce which established the age of emancipation at eighteen (18). Even if a child is eighteen (18) years old, if he is still living at home and dependent on his parents for his basic needs and support, while attending college on a full time basis, the Court will mostly likely hold that the child is not emancipated and thus entitled to receive continued support from both parents. Furthermore, the right to child support cannot be waived even when a custodial parent agrees in a Consent Order to waive such support when the child reaches the age of eighteen (18).

The purpose of child support is to allow a child to benefit from the income received by its parents so that the child may live a healthy and happy lifestyle. Both parties have a responsibility to contribute support to their child as well. A party is not permitted to make a waiver of one’s New Jersey child support obligation on behalf of the child as it is not theirs to bargain with.

Despite the above, Court’s do not often read the terms of a parties’ Property Settlement Agreement and will likely allow a waiver of child support that is contained in same if the parties have entered into the Agreement freely and voluntarily with full disclosure. This can be dangerous as a party may thus believe that they have effectively waived child support or that they may not have to pay New Jersey child support to the custodial parent. The matter then typically becomes a problem when one party tries to enforce the Agreement and the express terms of same as it relates to child support. You may find out at that time, that what you thought was a valid waiver of child support actually was not.

As practicing New Jersey divorce attorneys we deal with these types of issues on a reoccurring basis and know how to handle these matters and appropriately draft Agreements to protect your best interests. If you have a question concerning child support or any matter related to same, please do not hesitate to contact our New Jersey family law firm to further discuss your rights and how we can help you.