Am Jur 2d - Divorce and Separation § 937

IV. Child Custody and Support; Visitation Rights, B. Child Support, 3. Amount of Allowance, a. In General, § 937 - Effect of agreement of parties

An agreement of the parties concerning the amount to be paid as child support is not binding on the court.[1] Indeed, provisions in settlement agreements regarding child support are subject to the control of the court,[2] and notwithstanding any provisions of a marital separation agreement, the court retains jurisdiction to do whatever is in the best interest of the children with respect to child support.[3] A clause in a property settlement agreement is void if it restricts a child's right to support from the parents or limits the legislative authority of the trial courts to order such support.[4] Public policy forbids the enforcement of a private agreement that purports to discharge a parent's liability for child support, if the agreement does not adequately provide for the child.[5]

Observation:

A provision of a settlement agreement in a divorce action absolving the husband of any support obligation with respect to a child conceived as a result of artificial insemination by a donor (AID) during the marriage, but without the husband's written consent to the AID, is unenforceable as against the best interests of the child.[6]

A trial court has jurisdiction to render a judgment of dissolution, pursuant to a written agreement of the parties,[7] even if it includes a child-support order rendered in the absence of any reference to child-support guidelines.[8] Where the parties enter into a contract concerning the support of a child there is a presumption, in the absence of evidence to the contrary,[9] that the amount agreed upon is just and reasonable, and the court should not alter the award where there is no evidence of a need for more[10] or less.[11]

Observation:

In negotiating the final agreement for child support, the parties can agree to pay more than the minimum percentage set out in the applicable statute.[12] On the other hand, stipulating to a minimum amount of child support for a limited period of time does not violate public policy because it ensures that a certain amount of child support is received, which is in the best interests of the children.[13]

Cases:

A trial court in a marital dissolution action has jurisdiction to determine custody and support of the parents' minor children and to award child support even though the parents have agreed none should be paid. West's NRSA 125.510 , 125B.080 . Fernandez v. Fernandez, 222 P.3d 1031, 126 Nev. Adv. Op. No. 3 (Nev. 2010) .

Father was not required to pay expenses for children's extracurricular activities that increased exponentially as children entered middle and high school, as these expenses were not addressed in parties' mediated marital settlement agreement (MMSA), the MMSA provided that no modification of any of the terms of the MMSA would be valid unless it was in writing and executed with the same formality as the MMSA, and record did not contain written consents supporting the imposition of such costs on father. Cole v. Cole, 95 So. 3d 369 (Fla. 3d DCA 2012) .

Where the parties to a child support order have entered into a stipulation in regard to child support for a limited period of time that the court has adopted, courts retain the equitable power to consider circumstances in existence when the stipulation is challenged that were unforeseen by the parties when they entered into the stipulation if those circumstances adversely affect the best interests of the child; this is so because the protection of children and intervening in their best interests constitute long-standing grounds for exercising the equity jurisdiction of the courts. May v. May, 2012 WI 35, 339 Wis. 2d 626, 2012 WL 1086123 (2012) .

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1   Cohen v. Cohen, 162 Md. App. 599, 875 A.2d 814 (2005) ; Lucero v. Lucero, 16 Neb. App. 706, 750 N.W.2d 377 (2008) .

 As to the validity of separation agreements between a husband and wife, generally, see §§ 1030 to 1032 .

2   Thielen v. Thielen, 88 Haw. 191, 964 P.2d 645 (Ct. App. 1998) ; In re Marriage of Vandervoort, 185 P.3d 289 (Kan. Ct. App. 2008) .

3   Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006) .

4   Burke v. Burke, 52 Va. App. 183, 662 S.E.2d 622 (2008) .

5   Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 335 (2008) .

 Parents' postdivorce agreement that neither party was to pay support to the other to satisfy the needs of the child in their respective possession was unenforceable. Department of Human Resources v. Smith, 237 Ga. App. 883, 517 S.E.2d 111 (1999) .

6   Laura WW. v. Peter WW., 51 A.D.3d 211, 856 N.Y.S.2d 258 (3d Dep't 2008) .

7   Cohen v. Cohen, 41 Conn. App. 163, 674 A.2d 869 (1996) ; Miller v. Miller, 280 S.C. 314, 313 S.E.2d 288 (1984) .

8   Cohen v. Cohen, 41 Conn. App. 163, 674 A.2d 869 (1996) .

 As to the use of child-support guidelines, generally, see § 939 .

9   In re Marriage of Linnenburger, 741 S.W.2d 872 (Mo. Ct. App. E.D. 1987) .

10   Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227 (1964) ; Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963) .

11   Bradley v. Earl, 112 A.D.2d 262, 491 N.Y.S.2d 709 (2d Dep't 1985) .

12   Bryant v. Bryant, 924 So. 2d 627 (Miss. Ct. App. 2006) .

13   Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d 85 (2007) .

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