Parents often wish to enter into agreements for child support that deviate from the Michigan Child Support Formula (MCSF), which implements the legislative equation for calculating child support. An example would be parents who want to negotiate a lump sum payment for the life of the child's minority, rather than monthly payments. Typically, a custodial parent will inquire whether such an agreement is permissible when the amount to be paid is less than the MCSF permits. In these situations, I always caution my clients that the courts will not allow parents to negotiate away the right of children to be supported. That principle was recently reaffirmed in a published opinion by the Michigan Court of Appeals. However, this time it was with a new twist.
In Holmes v Holmes, Court of Appeals Docket No. 276470, the Court of Appeals stated that it "strongly disfavors" parental agreements that "limit a parent's obligation to pay child support." However, in this case, the parties had negotiated a child support payment that would exceed the MCSF. The father-payer later wished to modify this agreement to bring child support within the child support formula. The Court of Appeals ruled that the original agreement for a larger amount of support, which was included in the judgment of divorce, should be treated as an enforceable contract between the parties and should not be set aside.
There are two lessons to be learned from the Holmes opinion. Firstly, the Court of Appeals has stated that where the parents agree to deviate upwards from the child support formula and that agreement results in a greater amount of support, the court will enforce the agreement. Secondly, to protect a parent who later has buyer's regret, an agreement to pay an amount greater than the child support formula should provide that it may later be modified upon the same grounds that any child support award can be reviewed, that is, based on a change of circumstances.
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