Question: Can you sign a prenup legally forfeiting rights to child support if you divorce?
Answer: I practice in Utah, so this is my response from a Utah law perspective.
The question: Can a couple you sign a LEGALLY ENFORCEABLE prenup legally forfeiting rights to child support if they divorce?
My answer: In my professional opinion, almost certainly not. You could sign a prenuptial agreement that relieves a parent of child support, but that agreement would almost certainly not be enforceable if the parent who would otherwise qualify for child support ever wanted to challenge it.
Short of setting the child up with a trust account with a hundred thousand dollars or more in it (as opposed to paying child support on a monthly basis—and let’s face it, few could set up a trust account with a hundred thousand dollars or more in it, and even if one could, that’s just front-loading the payment of child support), I do not believe a court would relieve a parent of a child support obligation.
Here are some excerpts from the Utah Code to give you an idea:
§ 78B-12-105. Duty of parents.
(1) Every child is presumed to be in need of the support of the child’s mother and father. Every mother and father shall support their children.
§78B-12-210. Application of guidelines — Use of ordered child support.
(2)(a) The guidelines shall be applied as a rebuttable presumption in establishing or modifying the amount of temporary or permanent child support.
(b) The rebuttable presumption means the provisions and considerations required by the guidelines, the award amounts resulting from the application of the guidelines, and the use of worksheets consistent with these guidelines are presumed to be correct, unless rebutted under the provisions of this section.
(3) A written finding or specific finding on the record supporting the conclusion that complying with a provision of the guidelines or ordering an award amount resulting from use of the guidelines would be unjust, inappropriate, or not in the best interest of a child in a particular case is sufficient to rebut the presumption in that case. If an order rebuts the presumption through findings, it is considered a deviated order.
So unless you can give the court a good reason for why a parent should not have to pay child support to the other parent, it is all but certain that child support will be ordered.
And in Utah there are many kinds of child support, all of which a parent is obligated to pay:
A) Base child support. This is the monthly amount of money paid to the other parent.
B) Health, medical, dental and hospital insurance. This is another child support obligation. See §78B-12-212:
§78B-12-212. Medical expenses.
(1)(a) The court shall order that insurance for the medical expenses of the minor children be provided by a parent if it is available at a reasonable cost.
(b) The court shall, in accordance with Section 30-3-5, designate which health, hospital, or dental insurance plan is primary and which health, hospital, or dental insurance plan is secondary if at any time a dependent child is covered by both parents’ health, hospital, or dental insurance plans.
(2) In determining which parent shall be ordered to maintain insurance for medical expenses, the court or administrative agency may consider the:
(a) reasonableness of the cost;
(b) availability of a group insurance policy;
(c) coverage of the policy; and
(d) preference of the custodial parent.
(3) The order shall require each parent to share equally the out-of-pocket costs of the premium actually paid by a parent for the children’s portion of insurance unless the court finds good cause to order otherwise.
(4) The parent who provides the insurance coverage may receive credit against the base child support award or recover the other parent’s share of the children’s portion of the premium. In cases in which the parent does not have insurance but another member of the parent’s household provides insurance coverage for the children, the parent may receive credit against the base child support award or recover the other parent’s share of the children’s portion of the premium.
(5) The children’s portion of the premium is a per capita share of the premium actually paid. The premium expense for the children shall be calculated by dividing the premium amount by the number of persons covered under the policy and multiplying the result by the number of children in the instant case.
(6) The order shall, in accordance with Subsection 30-3-5(1)(b), include a cash medical support provision that requires each parent to equally share all reasonable and necessary uninsured and unreimbursed medical and dental expenses incurred for the dependent children, including but not limited to deductibles and copayments unless the court finds good cause to order otherwise.
C) Child care, i.e., work-related child care expenses . See Utah Code Sections 78B-12-214 and 78B-12-215:
§78B-12-214. Child care expenses — Expenses not incurred.
(1) The child support order shall require that each parent share equally the reasonable work-related child care expenses of the parents.
(2)(a) If an actual expense for child care is incurred, a parent shall begin paying his share on a monthly basis immediately upon presentation of proof of the child care expense, but if the child care expense ceases to be incurred, that parent may suspend making monthly payment of that expense while it is not being incurred, without obtaining a modification of the child support order.
(b)(i) In the absence of a court order to the contrary, a parent who incurs child care expense shall provide written verification of the cost and identity of a child care provider to the other parent upon initial engagement of a provider and thereafter on the request of the other parent.
(ii) In the absence of a court order to the contrary, the parent shall notify the other parent of any change of child care provider or the monthly expense of child care within 30 calendar days of the date of the change.
(3) In addition to any other sanctions provided by the court, a parent incurring child care expenses may be denied the right to receive credit for the expenses or to recover the other parent’s share of the expenses if the parent incurring the expenses fails to comply with Subsection (2)(b).
§78B-12-215. Child care costs.
(1) The need to include child care costs in the child support order is presumed, if the custodial parent or the noncustodial parent, during extended parent-time, is working and actually incurring the child care costs.
(2) The need to include child care costs is not presumed, but may be awarded on a case-by-case basis, if the costs are related to the career or occupational training of the custodial parent, or if otherwise ordered by the court in the interest of justice.
(3) The court may impute a monthly obligation for child care costs when it imputes income to a parent who is providing child care for the minor child of both parties so that the parties are not incurring child care costs for the child. Any monthly obligation imputed under this section shall be applied towards any actual child care costs incurred within the same month for the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277