Every divorce is utterly unique to the couple and the circumstances involved. While most divorces that involve children focus on hammering out child custody arrangements and child support payments, this is not true of all such divorces.
Some couples find themselves in situations in which they choose to forego child support payments altogether – sometimes in exchange for another divorce concession. We often receive questions whether it's possible to waive child support from their ex-spouse. There are many reasons some parents want to waive child support. Some just want to reach a settlement as fast as possible in an effort to avoid a lengthy argument over the amount of child support.
There are other parents who have fears that if they ask for child support, the other parent might ask for more custody time with the kids, or ask to pay a lesser amount of spousal support. Some other parents will even make a verbal agreement that if the other parent won't pursue primary custody of the children, then they won't ask for child support payments.
The fact is, however, that in the State of California neither parent can waive his or her responsibility to pay child support because child support is considered to be the child's right and to be in his or her best interest. Put simply, foregoing child support does not serve children's best interests. If you are going through a divorce, your children are naturally your primary concern and you need the skilled legal counsel of an experienced Los Angeles family law attorney.
To give readers a better understanding on what the California family code says about waiving child support, our California divorce lawyers are providing an overview below.
California Family Code 4001
The California Family Code 4001 states that in any legal proceeding that involves the support of a minor child, the court may order one or both parents to contribute an amount deemed necessary to support the child.
Regardless of the relationship between children's parents, all children are inherently entitled to receive parental support, and this right cannot be waived by either parent – nor can it be mutually waived by both parents. This means that as long as paternity is legally established, both parents – whether they have never been married to each other, are married to each other, are separated from each other, or are divorced from each other – are responsible for supporting their children.
This is regardless of any mutual arrangements the parents may make to bypass child support – such as trading spousal support for child support (or any other kind of trade-off).
Marriage of Ayo
In Marriage of Ayo (1987), the Court of Appeals of California established that parents' legal obligations to support their children in the form of child support is much more significant than a common debt.
Child support goes beyond being a simple good-faith obligation to pay a debt (as is the case with most other debts). As such, child support cannot be overruled. To overrule this support that every parent owes his or her children would be tantamount to allowing a simple contract – a parenting plan, for example – to thwart the State of California's laws and the court's rulings.
Parents Can Agree to Lesser Child Support
While child support can't be fully waived, parents could make an agreement for lesser child support than suggested in the California guideline calculation. This guideline is based on an amount the court will order unless a parent requests a higher amount. The child support calculation considers many different factors:
- Income of both parents
- Amount of time each parent spends with the child
- Age of child and if there are any special needs
If there is any agreement between parents to accept a lower child support amount, it must be made in writing and submitted to the court for approval.
It's important to note that Los Angeles family law courts are primarily concerned the child won't receive the full care they need on a lesser amount of child support. Therefore, you should expect to answer questions about how exactly the supported parent will make up for the lesser amount of support they receive. Parents will also have to acknowledge they are making an agreement that the court would normally order.
An Agreement to Waive Child Support Is Not Legally Binding
The fact is that making an agreement with your spouse to waive child support is not legally binding, and this fact can boomerang back to harm you in the future.
One example is that you might agree to waive your right to receive child support in exchange for your divorcing spouse agreeing not to seek custody. While you and your soon-to-be ex may find this arrangement perfectly acceptable, the law disagrees. If the judge who presides over your case discovers this arrangement, they can interpret the information in a variety of ways (none of them great):
- That your spouse is attempting to ignore his or her financial responsibility for your mutual children
- That you are attempting to sway child custody arrangements in your favor
- That both of you are shirking your duties and responsibilities
For the sake of your children, you want your final divorce decree to accurately reflect legally binding arrangements that you and your ex will carefully adhere to into the future. Failing to be upfront with the court from the beginning can have several adverse effects:
- It draws the court's attention to you and your spouse's attempts to sidestep the law.
- It diminishes you and your spouse's credibility.
- It diminishes your ability to persuasively argue the remaining matters that need to be determined in your divorce.
Ultimately, attempting to work around the law in this manner can wrest some of the decision making power that you and your spouse share and hand it over to the court. This can allow the judge to wield his or her already considerable discretion even more powerfully in your case.
Retain a Los Angeles Family Law Attorney
If you have questions or concerns, you should consult with our experienced Los Angeles family law attorneys. While neither parent can waive their obligation to pay child support, they do have a lot of flexibility in creating a parenting plan. We would encourage parents to seek their own solutions because they are typically more appealing all the parties, before submitting your case to the family court judge.
When it comes to divorce, your children are naturally your primary concern. Our dedicated legal team serves clients throughout Southern California, including the greater Los Angeles area and the San Fernando Valley.
Our attorneys have the experience, knowledge, and compassion to help ensure that you and your children's rights are well protected into the future. To schedule a free consultation, contact us at 818-528-3471.
Furman & Zavatsky
15821 Ventura Blvd #690
Encino, CA 91436