For parties whose combined net after tax income is less than approximately $185,000, there are  Child Support Guidelines that control what the support should be.  Generally, people cannot agree to pay less child support than is mandated and, in fact, it is well settled that a custodial parent cannot bargain away their right to child support because in theory, the support belongs to the child, not the parent.  On the other hand, if you agree to pay more child support than the Guidelines call for, you may be stuck with that deviation in perpetuity.

This fact was highlighted in the recent unreported case of Foster v.McGee.  In this case, the husband had researched the child support when the parties settled and proposed a number that he believed was in accordance with the Guidelines.  In fact, the parties’ Agreement reflects that the sum was determined after considering the Guidelines.  The wife was represented by counsel in the divorce, the husband was not.  Turns out, the husband figured the support out incorrectly, and support which should have been $198 per week under the Guidelines, was agreed to at $289 per week

Because this was determined not to be "mutual mistake" and that the increased support was in the children’s best interests, the husband did not get relief.

That said, the parties later had a verbal agreement to modify the support to $240 per week.  Even though the parties’ agreement said that changes had to be in writing, since there was no dispute as to the modification, it too was confirmed.  From a practical perspective, it is better to get any modifications confirmed in a writing.

However, as to the original point, was a fair result achieved?  If the Agreement suggests that the Guidelines were considered, then if there was not "mutual mistake", then were there sharp dealings?  Did the wife, who was represented by counsel. know that the Guidelines called for lower support by remained silent?  Moreover, when you submit your Judgment of Divorce, a Child Support Guideline Worksheet is supposed to be attached?  One think that if this happened, the mistake would be obvious?  If not, then why not"  Also, as noted in the opinion, there are supposed to be findings made by a trial judge if there is going to be a deviation from the Guidelines.  it does not appear to have happened here. 

While extra support will almost inevitably be in a child’s "best interest".  That said, one wonders whether a fair result occur ed in this case.

 

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