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You Can't Waive Child Support, But You Can Agree To More Than A Court Would Order
Jan L. Warner & Jan Collins

Question (by e-mail): After a six-year, mostly abusive relationship, I sued for divorce. Five months into our separation, my husband decided he wanted to remarry. At the suggestion of my lawyer (who told me that if we did not make my husband mad I would get more property and support), I went forward with the divorce before we completed the financial aspects of our case. Since then, my now ex-husband has paid only minimum support for our two children and has refused to share his income information with me. During the negotiations, I have been offered the house only if I accept a fixed amount as child support without access to my husband's annual financial statements and without increases.

My lawyer is counseling me to accept the offer even though we don't know my ex-husband's current income. We do know that his new wife is employed, and they have moved into a new home. My lawyer tells me that if I accept the offer, I will have to waive my rights to take my husband back to court down the line for more child support, and that if I don't accept it, my children and I will have to move from our home. Is there anything I can do now, before I burn any bridges to make sure my children's futures are protected? Is there any way I can gain access to my ex-husband's financial records without his cooperation? Would you recommend that I take the offer as it stands? My husband is nasty, intimidating, and uncooperative, and his lawyer acts the same way.

Answer: In the nearly ten years during which we have written this column, we don't think we've read about a lawyer who did a more disgustingly poor job than yours is doing for you. Unless you live in a Third World Country where the amount earned by the breadwinner is secret, the amount of child support is governed by formula in each state and the disclosure of financial information is an essential element. If your ex won't turn over these records voluntarily, you might want to ask your lawyer if he has ever heard about issuing subpoenas and production requests for these records so that, should you ex not comply, he can be taken before the family court judge for sanctions.

We also believe that public policy is very clear in all 50 states that you can not validly waive your children's rights in a divorce settlement. In fact, federal law requires that child support be reviewed every few years. For your lawyer to even suggest that you mortgage your children's future is a breach of his obligations to you and your children and an affront to the judicial process. If your lawyer is afraid of making your husband angry by advocating your rights, then get another lawyer who will represent your interests appropriately.

Question: When my husband and I married, he promised to take care of my two children who were born out-of-wedlock by another man when I was a teenager. Although he never adopted them, he told me not to worry about getting support from the natural fathers and he supported them. When we divorced after five years of marriage, he signed an agreement that he would continue to pay child support of $500 per month. The judge made the agreement a court order. Then, after paying for a few months, he stopped. When I tried to collect, his lawyer -- he didn't have one when he signed the agreement -- told the judge that the only reason my ex signed was because he thought he was legally responsible for the children. The court ruled with me, but my ex-husband is taking an appeal. My lawyer tells me there is no legal precedent in my state. Should I just drop my claims to avoid the appeal? Will I get support during the appeal?

Answer: Based on what you tell us, it seems that there are two questions here: The answer to the first -- "Does a stepparent have a legal obligation to support stepchildren?" -- is "No." The second -- "Even without a legal responsibility, can a stepparent create an obligation to support stepchildren by contract?" -- will have to be answered by the courts of your state.

When you and your ex signed an agreement, each of you assumed contractual obligations -- whether required by law or not. By making the agreement a court order, the family court can enforce the contract. We assume that your ex-husband was not forced to sign the agreement and had the opportunity to consult with a lawyer before he signed the agreement that affects important, long-term financial rights. The fact that he now thinks he made a mistake shouldn't impress the courts. We are sure during the course of his research, your lawyer will find persuasive decisions in other states that support your position. And although support payments are generally not stayed by an appeal, your courts will determine how long you may have to wait before your receive payments.

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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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