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Bartering Child Support & Custody
Jan L. Warner & Jan Collins

Question: After a 16 year marriage and two children, my husband and I divorced. Because I had gone back to school and was studying for my degree and because he worked out of the home at that time, we agreed to joint custody with the children to stay with him about 60 percent of the time. I needed every penny I earned from my job to complete my education and could not afford to pay child support, so my husband and his lawyer told me that if I would give up my rights in the equity in the house (about $25,000), he would not try to get support from me and I would not seek support from him. Having no other choice, I agreed.

The judge approved this agreement when we divorced, but I found myself buying most of the children’s clothing and, to a large extent, supporting them and having them with me more and more. Not long after I finished school, my sons (now 13 and 15 years of age) moved in with me. My husband now says that I am not entitled to support for the children and if I try to get it, he will get back child support from me for the two years he had the children. Can he do this?

Question: My husband and I were divorced two years ago at which time our daughter decided to live with him. We agreed that if I gave up my rights to his pension and the house, he would not come after me for child support, and I agreed not to try to get any support from him. I did not have the money to hire a lawyer. My daughter came back to live with me after only two months, and, because of the agreement, my husband told me that I could not get any support for her.
Our agreement provides that "Each of the parties hereto do hereby forever release, acquit and discharge the other from any and all claims or demands that he or she may now or hereafter have against the other, including but not being limited to child support payments, alimony, and property division.” He threatened that if I took him back to court, he would sue me and my parents for interfering with our contract. My parents are now helping me support my daughter.

I have not been back to court to get legal custody changed to me, and I am afraid to get my parents involved. Is there anything I can do?

Answer: In today’s day and age, we are amazed that any judge would rubberstamp and approve an agreement through which the rights of unrepresented children were bargained away by their parents.

Although a husband and wife are perfectly free to permanently bargain away their rights, they have no authority to alter the child support and other rights of minor children through a bartering process.
An agreement between parents which purports to waive child support is generally considered to be a violation of public policy and, as such, the agreement is unenforceable and should be set aside.

Depending on the law of your state of residence, we believe that, at a minimum, you could bring an action for custody and child support based upon material changes of condition since the earlier court order. We also believe that since the “consideration” for waiving your rights to property settlement was against public policy, there may be an opportunity to set aside the entire agreement and start over.

We suggest that you contact a good lawyer and explore your options.



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Suggested Reading:
Separation and Divorce Guidebook
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FS-Be Wary of Credit Issues with Ex
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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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