The parties’ 2008 Separation Agreement which resolved their divorce provided for joint legal custody of the parties’ two children, with their primary residence being with the mother. Nine months after the divorce, the mother remarried and moved to her new husband’s residence in Florida. The children remained in New York with their father.
The parties planned for a change in primary residence in their Separation Agreement. Specifically, if the children moved in with the father, the mother would not be obligated to pay periodic child support. (The father was paying $5,000 per month in child support while the children lived with the mother.) Moreover, the change in primary residence resulted in an “emancipation event” under the agreement, terminating the mother’s obligation to equally share certain expenses of the children including private school tuition, various unreimbursed medical costs, extracurricular activities, summer camp and college tuition.
This proceeding involved the father’s request for child support and for the mother to pay her pro rata share of expenses. The mother argued that as the agreement contemplated a change in primary residence from the mother to the father, there was no unanticipated change in circumstances sufficient to effect a modification of the parties’ Agreement. No periodic child support obligation should be imposed upon her. Moreover, the mother claimed to have paid some $300,000 towards the children’s expenses over the past three years.
In her March 28, 2012 decision in Rome v. Rome, New York County Supreme Court Justice Lori S. Sattler noted that “parents cannot contract away the duty of support.” Similarly, the Court has noted that a parent may not eliminate or diminish his or her duty to support by way of separation agreement. The parties’ agreement to waive support from each other “is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children’s needs are being met as their needs will take precedence over the Agreement.”
While the Defendant asserts that the Plaintiff’s application must be denied since he has failed to demonstrate a substantial change of circumstances, the Court finds that the Plaintiff does not need to meet that burden for this application to go forward. Under the terms of the Agreement, the Defendant is required to pay nothing on behalf of the children and has been under no obligation since some time in 2008. Such provision is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children’s needs are being met as their needs will take precedence over the Agreement.
Comment:The agreement which resolves a divorce often reflects a delicate balance among issues of spousal and child support and asset and liability division. Years after the execution, a court should be extremely hesitant to alter one of those balanced issues. The court should not ignore that various trades may may have been made to arrive at the overall agreement. Focusing on only one aspect of the agreement, even a waiver of child support, does the entire agreement a disservice.
Certainly, Justice Sattler properly decided to look at whether the needs of the children are being met. However, if the father is able, alone, to meet the reasonable needs of the children, consistent with the children’s lifestyle, then the parties’ agreement should be honored. Where the agreement merely allocates responsibilities between the parties, and does not prejudice the children, the parties’ agreement should be upheld.
As the Court of Appeals has noted, there is a difference between an agreement that is directed solely to readjusting the respective obligations of the parents to support their child (Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701 ) and a court’s power to order support where a child’s right to receive adequate support is in issue (Brescia v Fitts, 56 NY2d 132, 138, 451 NYS2d 68 ).
Not every waiver of child support, particularly one within the context of an overall divorce settlement between apparently wealthy spouses, should be void as against public policy. A separation agreement should be validated, unless it must yield to the welfare of the children.
Moreover, unless and until it is found that the needs of the children cannot be met if the waiver of support is honored, financial disclosure from the parent now not obligated by the agreement to pay support should be limited.