It is fairly common knowledge that child support is modifiable based on a change of circumstances, such as an increase or decrease in income. What most people do not know is that there are some traps. The following are some that fathers should be aware of if they are negotiating their own settlements.
- 1) If you agree to pay more child support than required by the Michigan Child Support Formula, you may not be able to request a modification. Pursuant to the Michigan Court of Appeals, in Holmes v Holmes, 281 Mich App 575, 760 NW2d 300 (2008), a payer of support is bound by an agreement to pay more child support absent any specific language indicating the overpayment of support is modifiable. In the Holmes case, the payer of support agreed to pay a percentage of his gross bonus on top of his ordinary child support payment. It is fairly common for individuals to bargain for this type of provision in child support orders if bonus income is unreliable. During settlement negotiations, the parties came up with the percentage based on a ratio of the payer's gross monthly income and his monthly child support obligation. When the payer's monthly income decreased, he sought a decrease in the percentage of the bonus income he was paying. The court denied his request on the basis that the provision in the Judgment discussing this bonus payment did not clearly indicate that the percentage was modifiable. The court applied contract principles in the analysis. The court found that there was no ambiguity, so it could not read into the intent of the parties at the time the agreement was made.
- 2) An agreement to pay less support is unenforceable absent a provision indicating that a certain amount of property/money was provided to the payee in lieu of making child support payments. 2008 MCSF 4.03. In order to be enforceable, the agreement must state the appropriate deviation language found in MCL 552.605 and the exact dollar amount of property/money payee is receiving in exchange. After the child support that should have been paid equals the amount of property awarded to the payee under the agreement, child support is then awarded pursuant to the Michigan Child Support Formula.
- 3) You cannot make an agreement stating if child support is awarded spousal support will be awarded in the same amount. This was deemed a violation of the public policy that parents cannot waive their children's right to support. Laffin v Laffin, 280 Mich App 513, 760 NW2d (2008). It was found that the provision was also inconsistent with the laws regarding spousal support.
- 4) A court cannot order a parent to pay post-majority support for a child. However, an agreement to pay post-majority support, such as college expenses is enforceable. Wagner v Wagner, 105 Mich App 388, 306 NW2d 523 (1981). Thus, if you lose your job or income, you may still be obligated to pay for these expenses. It would behoove you to make sure any agreement regarding post-majority support is deemed modifiable child support and not a property settlement which is not modifiable.
Even with all of this information a father facing a child support issue should contact us or another qualified attorney to get assistance.