The other day on one of the “ask lawyer” internet web sites, someone posted a question of whether you could waive or hold open child support. The answer to the former is no and the answer to the latter is yes. You cannot waive child support pursuant to a martial settlement agreement, as it is a right that belongs to the child. However, parties can agree in their marital settlement agreement, to “hold open” child support, given an appropriate set of circumstances where it would make sense to do so. What would be those circumstances?
Take a situation where a couple share equal placement of their children and their incomes are similar. Under that situation, it certainly would be appropriate that the parties agree that neither is going to pay child support to the other. This is what is meant as “hold open support.” The parties would also presumably have to agree to split variable costs for the children, such as extra-curricular activities and other expenses for children beyond basic support.
Where it would not be appropriate would be a situation where one party may have primary placement of the children, make a considerable less amount of money than the non-custodial parent, but for whatever personal reasons they may have, decides not to pursue asking for child support, but simply wants it held open. Under that situation, the trial court very well may not approve a “hold open” on support, since the judge would want to see that the children are provided for financially and it would be unfair not to have the non-custodial parent paying support for the children.
How do you go about modifying a “hold open” support order. In the future, there would have to a showing that there has been a significant and substantial change in the financial circumstances of the parties, sufficient to give the court a reason to set a child support from a “hold open” support order. You cannot just change your mind about it, or decide maybe you struck a bad deal in the first place by not seeking child support. Under Wisconsin law, there is a presumption that after thirty three months from the last order there is a change sufficient for the court to modify child support.
Before agreeing to a “hold open” on child support, think through carefully to make sure you will have sufficient monies available for the financial support of your children and you are not being bullied or pressured into agreeing to such a court order that may have long term financial impact on you and your children’s well being, and you may find, is not that easy to change once you are divorced.
If you are going through a divorce and have questions on support, call one of the experienced family lawyers at Karp & Iancu, S.C. for a consultation.
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Milwaukee, WI 53226
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