Child Custody Agreements with No Child Support

Are Child Support Agreements with No Child Support Legal? 

“We have reached an agreement that neither parent will pay child support.”   That is a common statement made by clients as they are navigating family law.  It is heard in divorce and paternity cases.  However, the reality is child support is a right of the child, not of the parent.  A parent cannot waive something that does not belong to them.   Child support exists as an operation of law, not as a contracted term.   Basically, the state has an interest in protecting children and ensuring they are supported and have the basic necessities.  The enforcement of child support also lessens the welfare burden on the rest of the citizens.  Parents do have a significant amount of flexibility when it comes to determining other child-related matters such as parenting time and custody.   Once those details are decided, child support is calculated using the Indiana Child Support Calculator.

Even though the right to receive support cannot be waived, there are times the court will approve a reduced or zero support order.   One instance would be if the amount of support would be so small due to incomes and other factors in the calculation that it would not make sense to enforce the payment.   Another reason to deviate from the support amount would be language that shares the child-related expenses in other ways.  Perhaps the non-custodial parent (typically the parent that would pay support) will be covering all or a larger portion of the extra-curricular activities or out-of-pocket medical expenses.

A court may also decide to alter the calculated child support obligation higher or lower due to factors that are not considered in the child support calculator.  If a parent has a regular monthly bill that causes financial hardship, his/her income can be altered to take that into consideration.  The same could be done if the parent receives a benefit on a regular basis that is not otherwise contemplated in the calculation.   Special needs or extraordinary medical expenses for the child may be a reason for the court to increase a weekly support obligation.

It is against public policy and contrary to Indiana Law for the court to approve any agreement eliminating child support based upon promises in other areas.  For example, a mother cannot tell the biological father of a child that she will waive child support if he promises to stay away from the child.  It is also not a good policy to promise additional assets in a divorce in exchange for eliminating or reducing support.   It is always important to remember child-related matters are modifiable.   Any agreements or orders regarding child support, custody or parenting time can be changed.  For example, if a parent agreed to give the other parent a retirement account in lieu of support, the parent owed support could later request a support modification from the court.  The distribution of property in that situation would not be modifiable.  The end result would be contrary to the spirit of the initial agreement.

Barring special circumstances of incapacitation or emancipation, the duty to support a child ends at nineteen.   Separate educational support orders may be agreed upon or ordered by the court as age nineteen approaches.  There is slightly more leeway in what can be negotiated in terms of educational support.

If you or someone you know has questions about calculating a child support order, give us a call at (317) 870-0019, or email us at info@banksbrower.com.

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Attorneys Brad Banks and Adam Brower are Indianapolis area litigators that focus their practice in Criminal Defense, Family Law, and Personal Injury.
(317) 793-3270