“My kid is 18 now. Can I just stop paying child support to his mother?”
I haven’t run the stats on this, but its my unofficial opinion that this is the most commonly asked question from people looking up legal advice in child support matters on line this year. As we Baby Boomers age, our children are becoming college age and beyond. Divorces in the 70s, 80s and 90s that once revolved around alimony, child support and pension plans now revolve around college costs and medical insurance. As the economy struggles, more and more noncustodial parents are seeking relief from the “burden” of child support. and are looking to terminate child support at the earliest possible juncture. So I’m seeing a lot of divorces that didn’t address the emancipation of their children as a vital part of future protections and obligations now coming into court asking for some clarification as to when they can finally stop sending those darn checks?
The shortest distance between two points, finding out the extent of your support responsibilities and when you can stop paying, is to read about it in your Divorce Agreement. That, of course, would mean you and your ex would have addressed it at the point of negotiations and settlement arrangements, that the terms of your Agreement were approved by the Court and that it was incorporated by reference in the final judgment of divorce. Further, the extent and details of the Agreement provisions addressing the terms of emancipation of the child (or children) would have to be examined.
Whether a parent may stop paying child support is predicated on one of two things: (a) an Agreement or Settlement of Divorce (or paternity) that addressed the issue and spelled out what would constitute the emancipation of the minor children of the marriage (such as at age 18, or if over age 18 but still in college, etc.) and if the parties agree, without further requirement of judicial intervention, to terminate child support upon the occurrence of a set of conditions precedent (b) state statute.
If the parties cannot come to an agreement that includes terms they can live with and maintain, then the court will apply statutes that cover the issue and define the bottom lines.
The first thing to keep in mind is that a dependent child’s right to receive support from a noncustodial parent does not automatically end the minute the clock strikes midnight on the 18th birthday. There are facts and circumstances that will affect a court’s ruling on whether to terminate child support.
Firstly, is there a divorce agreement and does the agreement address the emancipation of the child and the termination of child support? An agreement (esp one that has been reduced to a judgment) will probably control. Barring an agreement, we look to the statutes:
The court may make appropriate orders of maintenance, support and education for any child who has attained age eighteen but who has not attained age twenty-one, who is domiciled in the home of a parent and is principally dependent upon said parent for maintenance. The court may make appropriate orders of maintenance, support and education for any child who has attained age twenty-one but who has not attained age twenty-three if such child is domiciled in the home of a parent, and is principally dependent upon said parent for maintenance due to the enrollment of such child in an educational program, excluding educational costs beyond an undergraduate degree.
So there’s the black-and-white of it. —But you’re not out of the woods yet, my friends. You MUST get an agreement and/or court order that says you no longer have to pay child support (—for that child–you may still be obligated to pay for other children). If your income is garnished through the Dept of Revenue, nothing but a court order will stop the garnishment.
In MA, the way you get a court order to terminate child support obligations is by filing a Complaint for Modification in the Probate & Family Court of the county where the child support order and/or divorce was entered. The form itself is not complicated; you can find it online at the court’s website. However, the litigation may become complicated. There are many borderlines cases where a child may, for example, be over 19 not in school, but still dependent on the custodial parent for support and maintenance. Noncustodial parent’s ability to pay may be a countervailing element. The court will take many factors into consideration. There is no “slam dunk” or “black-and-white” prototype. Another option is to file a Joint Petition to dissolve the child support obligation. This sounds a bit easier, but its actually not–procedurally. Either way, I strongly urge anyone with these types of concerns to consult with an experienced Family Law attorney.
If I haven’t convinced you yet that the best thing to do is get a court order to terminate your child support obligations, perhaps this will: You can go to jail for not paying child support. As long as an order sits on the records, and has not been overturned by subsequent order, the obligor (you) will be held accountable for making those payments. If you do not make them, they accrue as arrears, with penalties and fines. There is no forgiveness –repeat–NO FORGIVENESS —for arrears. The Dept of Revenue will hunt you down, they will arrest you, confiscate your assets, seize bank accounts, revoke your drivers license and any other license that your work may depend upon — we’re talking merciless.
And don’t forget, you’re doing this for your child. Put aside whatever harsh feeling you may have for your ex, cutting off a life line to a young adult, especially in this day and age, is something you should think about carefully and be flexible in negotiating.
Estela Matta, Esq.