Waiver of Child Support

More and more frequently divorcing couples are deeming it unnecessary for one spouse to pay the other child support. If the parties have sufficient incomes and they are in agreement about custody and visitation avoiding a weekly transfer of child support may seem like the best option. In other circumstances the custodial parent may want nothing to do with the non-custodial parent, and she or he may want to waive child support in order to sever all connections to the other parent. However, it is a bedrock principle of New Jersey law that child support may not be waived by either parent. If you have questions about how to address a desired waiver of child support, Bergen County child support lawyer Brian D. Iton can help.

Child support payments are generally paid by non-custodial parents to custodial parents. Custodial parents then usually handle the day-to-day financial support for the children, such as paying for groceries, paying the mortgage or rent, buying clothing, and so on. However, despite these facts, by law, the right to child support belongs to the child rather than the custodial parent.

Consequently, neither parent has the right to waive child support or to make any form of arrangement that essentially constitutes a waiver, such as refashioning a property settlement between them in exchange for allowing one parent to forego child support payments, or agreeing to cede custody or visitation rights in return for not needing to provide child support.

Having said this, there are circumstances in which child support arrangements that may be unconventional are not waivers, and there may be other cases in which a parent is essentially trying to obtain a waiver inappropriately. Since a waiver is never allowed, courts scrutinize these cases to make sure that the child’s right to support is fully protected.

In New Jersey, reaching the age of majority is not in and of itself evidence of emancipation. New Jersey specifically recognizes that child support obligations may continue beyond that date, particularly if a child is attending a post-secondary school. An unemancipated child has a right to support that may not be waived, although it may be modified.

Furthermore, not every case in which a non-custodial parent or higher-earning parent does not pay the other parent is a waiver. Parents, particularly those who share custody, may make arrangements that allow each parent to make direct purchases for their children, or the parents may agree to pay child-related expenses such as daycare expenses, tuition and medical insurance directly to a third-party provider. In these cases, this is not a waiver but a direct support arrangement. In some cases, this type of arrangement may be preferable, particularly if the non-custodial parent is seeking transparency regarding child support expenses, and direct payment helps the non-custodial parent feel more directly involved in the day-to-day support and life of their child.

New Jersey family courts will generally allow parents a great deal of leeway to fashion child support arrangements as long as the children are not deprived of needed support. To this end, even child support arrangements to which both parents agree will be scrutinized by courts to make sure that the children’s rights to support are protected and that no waiver of child support has occurred.

In trying to work out child support arrangements in the midst of a divorce, you should consult an experienced family law attorney to make sure that any arrangements that you make do not run afoul of the prohibition against a waiver of child support. Furthermore, in cases that involve direct payments, it is important to make sure that all income and expenses are properly taken into account to show that each parent is meeting their support obligation. For help and advice in Bergen County or beyond, contact family law attorney Brian D. Iton toll-free at (844) 431-3380, or you can contact us online to set up a free appointment. For more than two decades Brian D. Iton has counseled clients in Northern New Jersey through child support and child-related issues, including residents of Hackensack, Paterson, Jersey City, Newark, and other areas of Bergen, Passaic, Hudson, Essex, Middlesex and Union Counties.