Handshake 1.jpgParticularly when it comes to agreements fixing child support obligations, “shaking on it” is simply not enough.

Both the Domestic Relations Law and the Family Court Act authorize parents to enter agreements which establish their child support obligations. DRL §§236B(3) and 240(1-b)(h) and FCA §413(1)(h) set out many requirements for such agreements.

Nothing suggests that modifications of such agreements are any less prescribed. Indeed, a “belt and suspenders” approach calls for nothing less than a fully-restated support obligation agreement to implement the slightest change to which parents agree.

Consider the March 29, 2012 decision of the Appellate Division, Third Department, in Hirsch v. Schwartz. The parties’ 2007 separation agreement was incorporated into and survived their 2009 judgment of divorce. It required the father to pay 96% of all child-care expenses for the parties’ two children. Shortly after the divorce, the mother sent the father a letter offering to  reduce the father’s child-care expenses from 96% to 75%. Although the father did not sign and return the letter, he made at least two full reimbursement payments and several partial payments in the months that followed.

The mother subsequently commenced a Saratoga County Family Court proceeding to enforce the child support provisions of the original judgment of divorce. The father argued that the mother’s letter offer served to modify his support obligations and that the terms of this subsequent agreement should be enforced. Following a trial, the Support Magistrate found that the letter offer did constitute a valid modification of the parties’ separation agreement; the father’s child-care share of expenses was reduced to 75%. However, upon the mother’s written objections, Family Court Judge Gilbert Abramson concluded that the Support Magistrate lacked the authority to enforce the terms of the purported modification agreement. Therefore, the original provisions of the judgment of divorce concerning the father’s child-care obligations controlled.

The Third Department affirmed, holding that the Family Court, as a court of limited jurisdiction, may only enforce or modify child support provisions contained in a valid court order or judgment. Thus, even assuming that the mother’s letter offer constituted a valid modification of the parties’ separation agreement, the Family Court “does not have subject matter jurisdiction [to] enforce the amended agreement which stands as an independent contract between the parties.”

It is noted that the Appellate Division, Second Department, in its April 24, 2012 decision in Tammone v. Tammone, also held that “the Family Court did not have jurisdiction to make a declaration as to the validity of an alleged oral modification of a separation agreement.”

The Third Department in Hirsch did not discuss whether the father might have a separate contract remedy enforceable in Supreme Court to recoup any “over-payments.” However, perhaps the lesson to be learned is that nothing less than a fully-restated court-approved child support agreement is sufficient to put into effect the slightest of modifications. Thus, among other provisions, the restated modification agreement should:

  • be in writing;
  • be signed by the parties;
  • be acknowledged before a notary public;
  • include a provision stating that the parties were advised of the provisions of the CSSA (Child Support Standards Act) and that the basic amount of child support provided for in the CSSA would “presumptively result in the correct amount of child support to be awarded”;
  • set forth the amount that the basic child support obligation would have been and the reasons why the parties may not have provided for the CSSA amount in their agreement or stipulation;
  • contain opting-out language limiting future modifications;
  • contain recitations regarding enforcement methods; and
  • contain, or at least reference and reaffirm all other related agreement provisions such as emancipation, health insurance and expenses, child care and college.

Then, the agreement should be submitted, on consent, to the Supreme Court to obtain a modified divorce judgment or order of support.

Yes, all this means that lawyers, for both parents, must be re-involved. However, nothing less will give peace of mind.

Anne Reynolds Copps of Albany represented the father. Jennifer P. Rutkey, of Gordon, Tepper & DeCoursey, L.L.P., of Glenville represented the mother.