The father has agreed to be solely responsible for the support of our children if I agree to waive alimony. In other words, he will waive child support from me and I will waive alimony from him. Is this legal?
Child support belongs to the child. It has been held that a parent cannot waive a child’s right to support from his or her parents. Even a parent’s dilatory action in delaying to enforce a child support obligation will not work to the detriment of the child.
While your bargain seems to be reasonable and is based on an exchange of consideration (each of you is giving up a valuable right: you are giving up alimony from the father and he is giving up child support from you), there is no assurance that the Agreement will be enforced. Enforceability, if allowed, depends upon the circumstances that exist at the time that the Agreement is sought to be enforced. If the father is and continues to be financially able to meet his end of the bargain and the children are properly supported by him, he would have a difficult time to unravel the Agreement. However, if the children were not being properly supported because of a reversal of the father’s earnings or fortune, the children would be entitled to turn to you for support.
Remember, child support belongs to the child. The parents do not have the right to deny children the support to which they are entitled to under the law of New Jersey. Even an agreement by both parents that manipulates the law in their favor at the expense of the children, will fail. The Courts zealously protect the rights of children.
The bottom line is that your bargain is a risky undertaking. If you nevertheless believe it is fair for you and the children, it is important for you to consult a competent Family Law attorney and ask that he include in the Marital Agreement provisions designed to protect children, to the fullest extent possible. An example of such provisions can include the reversal of your waiver of alimony, indemnification provisions, accessing the father’s assets, implementation of a support trust and any other measures designed to level the playing field for you and the children. To survive an attack by or for the children, the Agreement must assure that the children will be supported consistent with the governing legal tenets.