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| Judge Nancy Thane |
By Judge Nancy
Thane, Presiding Judge, 54th Circuit Court Family Division
In our business, we always hope that “everyone can get
along.” We like to encourage parents to
come to agreements and reach resolutions when it comes to their children. After all, conflict is an enormous waste of
time. So, we should embrace agreements
within our cases. However, we still need
to exercise caution for these agreements, especially when it relates to the
support of a child.
Below are several questions and answers related to the use
of the Michigan child support formula (MCSF) when parties have reached an agreement related
to child support. These are designed to
provide assistance to you when reviewing such agreements/orders.
Does the court need to know the support amounts calculated using the MCSF when parties have reached an agreement and want to stipulate to the entry of a consent order?
When ordering child support, the law requires the court to either
order the amount determined by the formula or deviate when the formula’s result
is unjust or inappropriate.[1] Before adopting a support order based upon the
parties’ agreement, the court must know the result of application of the
formula. If the calculated amounts match
the agreement, the court knows that the proposed obligations follow the formula
and can enter the order. If the
calculated and proposed obligations differ, the court knows that the parties
have deviated. Before approving an
agreement that differs from the formula and entering an order, the court needs
to evaluate the agreement.
Is the court required to accept agreements by parties regarding child support?
No. Stipulations by the parties do not bind the court.[2] The court bears responsibility to assure that
child support is just and that its orders are legally proper.
Does the difference between the agreement and the amounts determined by the application of the MCSF matter?
Yes, especially if the agreement is to pay less than the
amount determined by the formula. Each
parent has a separate duty to provide financially for his or her children.
Because the MCSF is based upon economic estimates regarding the cost of raising
children as shared by both parents, allowing one parent to greatly reduce that
amount can quickly impact a child’s standard of living.
Must a consent order that does not follow the MCSF be treated as a deviation?
Yes. Any time that any
of the formula’s applicable provisions are not applied based upon the facts in
a case or different amounts are used, the resulting support obligation deviates
from the MCSF. MCL 552.605(3) permits a
court to enter an order based on an agreement by the parties to deviate from
the formula, provided that the court determines the formula has an unjust or
inappropriate result and explains the deviation by recording the required
information in the deviation addendum.[3] A
trial court “must still comply with MCL 552.605(2) and ensure that a child
support order is just, even if the parties agree to a support order that
deviates from the guidelines.”[4]
When parties agree about the support obligation, why must a deviation addendum be completed and submitted with the Uniform Child Support Order?
First, the statute requires that the information contained
on the deviation addendum be recorded for every deviation, including consent agreements. The addendum is a page of the uniform support
order, and without it the order is incomplete.
Second, if all of the information is clearly explained on
the addendum, it saves resources and prevents future mistakes. A properly completed deviation addendum provides
many benefits, including the following:
- The parties can make an informed decision regarding the agreement, and know precisely what the agreement entails.
- The court can use the information to decide if the agreement is fair and legally proper.
- By having the reasons for deviations recorded, it prevents future modification if the conditions remain unchanged. It can be easily located for future reference by the parties, the court, and friend of the court. When used to record the circumstances related to an agreement, the addendum should prevent a party from benefiting and then unjustly seeking modification to apply the guideline.
- The information taken from the addendum and recorded when orders are entered in the MiCSES case management system is used to evaluate if provisions in the MCSF should be changed in the future.
When a child receives public assistance, may the parents agree to a support amount that is less than the MCSF calculation?
Yes.
The law permits agreements that deviate, without making any distinction regarding
receipt of public assistance. If the
formula’s application has an unjust or inappropriate result, the court should
deviate and enter a just order, even when children are enrolled on public
assistance.
However, “parents of a child
are not permitted to bargain away a child's right to receive adequate support.”[5]
Courts should take “a dim view of agreements purporting to sign away the rights
of a child, particularly when the result of such an agreement may be that the
child becomes a public charge . . . .”[6]
In
other words, proceed with caution when a low or zero support order is proposed
as a deviation from the formula, especially if you have reason to believe that
it will likely create for the support recipient’s household a dependence upon
public assistance.
Why are the parents not just allowed to agree to what one owes the other?
Child support is not
ordered for the benefit of a parent or custodian, but rather to satisfy the
needs of the child.[7] Each
child possesses the inherent and fundamental right to financial support from
each parent, and that right is independent of the parent’s rights.[8] A
parent cannot waive the child(ren)’s right to support, nor can the parents
bargain away their child(ren)’s right to receive adequate support.[9]
If you have more
specific questions about deviation, you can always contact Bill Bartels of the Friend of the Court Bureau and/or submit your question to the editor to be addressed in a future
article.
