One of the most important principles relating to child support is that child support belongs to the child. Although the money may be flowing to a parent, it actually belongs to the child. For that reason, agreements related to child support are subject to special supervision by the Court. Parties can agree to waive alimony or equitable distribution, but they cannot agree to waive child support. It makes sense, right? You cannot choose to waive the right to child support because it isn’t yours; only your child could make that decision.
This idea has been incorporated into a long string of case law in the State of New Jersey. I’ve cited a few of them below and in the [Child Support] section of the Divorce Guide:
- “A corollary to the principle that child support belongs to the child is the principle that the right to receive child support may not be waived by a custodial parent.” [Colca v. Anson, 413 N.J. Super. 405, 420-21 (App. Div. 2010).]
- “[T]he right to support belongs to the child. … For this reason and because of the State’s parens patriae interest in assuring a proper level of support for all children, the right to child support cannot be waived by the custodial parent. Whether or not defendant has a continuing obligation to support the child must be based upon an evaluation of the child’s needs and interests and not upon the conduct of the plaintiff. Each parent has a responsibility to share the costs of providing for the child while she remains unemancipated.” [Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).]
- “[W]e hold the parental duty to support a child may not be waived or terminated by a property settlement agreement.” [Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003).]
- “Of course, a parent cannot bargain away a child’s right to support because the right to support belongs to the child, not the parent, and no agreement between the parents can deprive a court of its authority to require that adequate provision be made for dependent children. On the other hand, however, nothing in the law, and no principle of public policy prevents a parent from freely undertaking to support a child beyond the presumptive legal limits of parental responsibility.” [Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).]
- “Even an explicit waiver agreement can not vitiate a child’s right to support.” [Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008).]
It’s important to remember this important point when negotiating settlement agreements. Thinking about giving up something in exchange for a waiver of child support? Think again! At any time, the opposing party can take you back to Court and set aside the child support portion of your agreement, and the Court may be reluctant to reexamine the agreement as a whole.
Want to learn more about child support law in New Jersey? Check out the Guide: [CHILD SUPPORT.]
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