July 1, 2009
Coffee Shop Child Support Agreements and Non Modifiable Orders
This week I have two questions to answer which are linked: Can I agree with my spouse to a certain child support amount and get this put into our separation order; and, can I also make that order non modifiable?
As we have previously discussed, settlements that start out as agreements made before getting to court are favored by judges. People tend to stick to their own handshake agreements; pre-court agreements save money for the two new family units and they reduce the necessity for a lengthy court hearing. So the easy answer to the first question is yes, you certainly can work out a child support amount with your soon to be ex, and make that a part of the settlement agreement.
The only reservation that I have on these ‘coffee shop’ agreements is that sometimes one party or the other underestimates the costs involved in having two households, is not fully briefed on their rights or is not aware of the support guidelines as set by the State of California. If one party is wise to all this information and the other is naïve, then what seems like a pleasant negotiation and agreement could actually be a rip off. And if that is compounded by an agreement to make the order non-modifiable, then you have the worst outcome possible.
Non modifiable orders do have apparent value. Due to the wild and sometimes downright scary variables in our current economy and fears in general surrounding child support, parents are more frequently attempting to draft non-modifiable child support orders. In theory this means that whatever amount of child support is originally agreed to, the parties cannot change the amount at a later date. Generally such arrangement can work, if both parties continue to earn close to what they earned when the agreement was made and if they continue the same visitation schedule.
However a non modifiable order becomes a major problem if
- either party loses a job or takes a pay cut,
- either one receives a big pay increase
- either party later realizes they were uninformed of their rights or the payment guidelines
- child care costs change due to a child’s illness or injury
- or the time share arrangement for the children changes.
The courts have long held that the children of a relationship deserve to share in the lifestyle of BOTH parents….Therefore if one starts earning a lot more, it is considered fair to adjust the child support to allow the children to share in that increase. This works the other way as well. If one parent takes a pay cut, it is only fair that they can seek to modify the child support payment to reflect their new financial circumstances.
Even though parting parents may agree to non-modifiable child support agreements, the courts still retain the authority to make adjustments. The courts want to do what’s in the best interest of the children and they will not allow a mistake in judgment by a parent to keep the kids from getting the support they are due.
So if you ask for (or have already agreed to) a non-modifiable agreement clause realize that you have rights that supersede that agreement and that you can always ask for help to correct an injustice or error – as long as it is for the children’s benefit.
June 25, 2009
Jon and Kate Plus 8 Divorce and Child Support
After many months of speculation, it’s official. Jon and Kate Gosselin are headed for divorce court. What’s extremely sad is there are EIGHT children in the middle of this controversy, and the parents continue to air their personal troubles for the world to see! What’s even more disturbing is that Jon and Kate wish to continue their show right up to their divorce….
They recently stated on the show, “It’s just not good for us to be arguing in front of our kids and we just; if we can’t be cordial with one another then we decide to separate.” Kate then states that she is not very fond of the idea but says she “knows it’s necessary because my goal is peace for the kids and um, if peace needs to be brought about by this then I’m in agreement.” Kate then went on to explain that the kids will remain living in their house, meaning the house and grounds belong to the kids.
According to their separation agreement terms, Kate and Jon will take turns staying at the kids’ house when they each have their visitation. Jon agreed in the interview that the kids would be best protected and feel more secure by living at the house.
So several clients have asked me, if this separation is real, will either party be required to pay any form of child support for the eight children? And the answer is…. IT DEPENDS. As mentioned above, the children will continue to reside in the home and the parents will take time living in the residence, which tends to make the adjustment for the children a little easier in a divorce proceeding.
In terms of Child Support, for example, if Jon is earning more money than Kate, and Kate is spending more time with the children, it is quite possible that he will be required to pay child support. However, if they are “sharing” custody of the children, and they both earn similar incomes, a child support obligation may not exist. Also, they might mutually agree to forego child support – that’s also a possibility.
Considering they both earn something from their reality show – probably similar earnings – any child support obligation one could have to the other will be minimal.
Whatever is done in the dissolution (divorce process) or with child support, hopefully the children will have a smooth transition…
Child Support in California 