The Better Chancery Practice Blog

Only last week I had two PSA’s presented to me in which the parties agreed to waive child support for the non-custodial parent. I refused to sign the judgments. The reason is that the parties are not at liberty to enter into such an agreement. The law could not be clearer.

This is from the case of Varner v. Varner, 588 So.2d 428, 432-33 (Miss. 1991):

Courts award child support to the custodial parent for the benefit and protection of the child. Lawrence v. Lawrence, 574 So.2d 1376, 1381 (Miss.1991); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989); Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986). Such benefits belong to the child, and the custodial parent has a fiduciary duty to hold them for the use of the child. Sorrell v. Borner, [593 So.2d 986, 987 (Miss. 1991)]; Cumberland, 564 So.2d at 847; Alexander, 494 So.2d at 368; Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss.1983). Such support obligations vest in the child as they accrue, and no court may thereafter modify or forgive them if they be not paid. Premeaux v. Smith, 569 So.2d 681, 685 (Miss.1990); Thurman v. Thurman, 559 So.2d 1014, 1016–17 (Miss.1990); Cumberland, 564 So.2d at 847; Brand v. Brand, 482 So.2d 236, 237 (Miss.1986); Hailey v. Holden, 457 So.2d 947, 951 (Miss.1984); Hambrick v. Prestwood, 382 So.2d 474, 476 (Miss.1980). The only defense to an action therefor is payment.

No party obligated by a judicial decree to provide support for minor children may resort to self help and modify his or her obligation with impunity. The interest of children weighs in the judicial mind far heavier than those of either parent.

Cumberland, 564 So.2d at 847.

In Calton v. Calton, 485 So.2d 309, 310–11 (Miss.1986), this Court refused to recognize a contract between divorced parents, containing a covenant not to sue for child support. We agreed with the Florida court in Lang v. Lang, 252 So.2d 809, 812 (Fla.Dist.Ct.App.1971); that

[t]he basic right of the minor child to be supported by its parents is not affected by an agreement between the parties with respect to such obligations; “children are not chattels whose rights can be bargained away by parents”….

Calton, 485 So.2d at 310; see also, Lawrence v. Lawrence, 574 So.2d at 1381.

Negotiation to obtain a divorce is devilishly difficult in Mississippi because of the codified “divorce blackmail” that is engrafted into our law. I know that you have parties who say that if you will just draft it so that the party with the upper hand can walk away with no bothersome financial obligations and they can move on to the next chapter. But the children are entitled to be supported, and the parents can not do away with it by agreement.

Tagged: agreements to avoid child support