Waiving child support in a Virginia separation agreement

Posted on Apr 13, 2018 by Katie Carter

I hear the same objection all the time: “But my husband says he won’t sign an agreement unless I waive child support.”

They’re upset.  They’re scared.  They don’t know what to do.  Most are loathe to accept any kind of financial assistance from their child’s father anyway, but they’re still not quite sure how they’ll make ends meet WITHOUT child support.  “What can I do?” they ask me, tearfully.

So, it’s a loaded question, and one I’ve got a LOT of different answers for.  My first answer, and my immediate reaction is, “Well, he has to pay child support.  It’s the law.”  The law doesn’t say that child support may be awarded, if he wants to pay it.  Child support is awarded, though not necessarily always to the mother.  A child support calculation includes mom and dad’s income, how much is being paid for work related child care costs, the cost of health insurance for the child, the number of children involved, and the amount of time each parent has with the child.

But what if he refuses to sign an agreement that includes child support?

In Virginia, you get divorced in one of two ways: (1) either you sign an agreement, decide for yourselves how your assets and liabilities will be divided, and get an uncontested divorce, or (2) you file for a contested divorce, litigate in front of a judge, and then the judge decides how everything will be divided.

If he won’t agree to pay child support, we can’t make him sign an agreement including it.  So, we have two options: (1) either you file for a contested divorce in the circuit court (actions for divorce are always going to take place in the circuit court), and move it forward in the court system, or (2) you file for child support, custody, and visitation in the juvenile court.

What are the advantages and disadvantages of filing for divorce in circuit court, versus filing for custody in the juvenile court?

Good questions!  It’s difficult, sometimes, to choose the best course of action — and, of course, you’re already frustrated because you want to resolve things quickly, amicably and cheaply, and all of this talk of potential court action, regardless of which path you choose, will automatically make things take longer and cost more money.  It probably also pretty much guarantees that things will be more acrimonious, too, because who is happy with a spouse who makes things so much harder than they have to be?  I get it.  It’s frustrating.  But if he won’t agree, you have to follow through with the legal process to get your child support awarded.

Important note: If you file for child support in the juvenile court, it can be granted retroactively back to the date you filed.

Circuit Court: Advantages and Disadvantages

The circuit court is generally regarded as more complicated than the juvenile court, and, in most cases, you’re going to be better suited to hire an attorney to represent you in court there.  It’s not as user friendly, and you’ll also probably find that the clerks and the judges aren’t as accommodating.

The good news, though, is that by filing for divorce, you’re beginning to move the divorce forward.  In the juvenile court, on the other hand, custody and visitation proceedings don’t move your divorce along — so, when you’re done, you still have to contend with the divorce process.  And if he wouldn’t sign an agreement before, there’s no guarantee he’ll sign an agreement later, meaning that you could STILL have to file for a contested divorce after your juvenile court issues are resolved.  It’s nice to deal with it all in one fell swoop.


Juvenile Court: Advantages and Disadvantages

The juvenile court is great in lots of ways, too.  I  mentioned the retroactivity thing before, and that’s a key point to know — if getting child support is super important to you, you’re going to want to file in juvenile court ASAP.  Even if it takes four to six months to get to trial (which, honestly, it probably will), you can be awarded back child support for those months before your trial date.

Juvenile court, as I also mentioned, tends to be more user friendly, and you’re more likely to be able to navigate it without hiring an attorney to represent you there — which can result in significant savings.  Another benefit is that a verdict in juvenile court is automatically appealable to circuit court, so if you get a result you don’t like, you can have the case re-heard de novo (meaning a brand new case without anything from the juvenile court case getting up to the circuit court judge).  The only catch?  You have to note your appeal within ten days from the date of the verdict.  (In circuit court, it’s much, much harder to appeal; talk to an attorney if this is a concern of yours.)

So what should I do about child support?

I’m not quite finished yet.  You already know you have these options — you can file for a contested divorce in circuit court, or you can file for custody, visitation, and child support in juvenile court.  But what if you want to negotiate a separation agreement?  Sometimes, that can be a good strategic decision, too, even if it means you waive or reserve child support.

I talked to a woman the other day with a unique situation.  She told me she had some pretty significant financial assets.  Some of them were pre-marital, and separate, but part of them would have been classified as marital.  Her husband told her that he would be willing to give up his interest in those in exchange for her waiving child support.  “So, what should I do?” she asked me.

It’s entirely possible to enter an agreement waiving or reserving child support.  Probably, he’d want to see language in there that waived it, rather than reserving it, because he isn’t a moron — reserving obviously means you’ll bring it up later.  But if you can slip it by him, reserving it is great, because then you can petition the juvenile court after your agreement is signed, and you won’t even need a material change in circumstances to get the judge to calculate it.

He can’t change the terms of the agreement — those are final.  But anything related to custody, visitation, and child support is always going to be modifiable based on a material change in circumstances anyway, so even if you DO waive it, you can always go back to court on a material change and ask the judge to award child support.  And remember how I said child support is the law?  That means the judge WILL award it.  But his waiver of his interest in your other property?  That’s final, and he can’t change it.  No material change in circumstances affects equitable distribution of marital property after a separation agreement has been signed.  He’s stuck.

Depending on your circumstances, that could be an option, too–especially since, if you remember, as I told you before, juvenile court is often more user friendly, so it’s possible you could even petition for child support without hiring an attorney.  You might choose to, but you might not.  It’s really up to you.

Need more information?  You can request a free copy of our custody book or get more information about our custody seminar, Custody Bootcamp for Moms, designed to teach moms what they need to know to represent themselves in the juvenile court in custody, visitation and (yes!) child support cases.  You can also schedule a one on one consultation, especially if your husband has told you he won’t sign an agreement without a waiver of child support being included, to help you weigh the advantages and disadvantages and come up with a custom tailored course of action for your unique circumstances.