Professor Lex Child Support Deviation

Dear Professor Lex,

My client, in a divorce case, wants me to prepare a judgment of divorce that incorporates an agreement he made between him and his spouse. The agreement, they negotiated without attorneys, is that my client would pay child support in an amount substantially less than what the guidelines recommend. In consideration for this reduction my client would agree to assume all of his spouse’s pre-marital debt. Do you have any thoughts as to whether we will have trouble having this agreement entered?

Dear Practitioner,

A child has an inherent right to the support of his or her natural parents. MCL 722.3(1). Section 1.01(B) of the 2017 Michigan Child Support Formula Manual states:

Except as otherwise permitted by MCL 552.605, courts must order child support in the amount determined by applying this formula. Unless rebutted by facts in a specific case, the law presumes that this formula (or "guideline") sets appropriate levels of support.

MCL 552.605 states:

Sec. 5.

(1) If a court orders the payment of child support under this or another act of the state, this section applies to that order.

(2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:

  • (a) The child support amount determined by application of the child support formula.

  • (b) How the child support order deviates from the child support formula.

  • (c) The value of property or other support awarded instead of the payment of child support, if applicable.

  • (d) The reasons why application of the child support formula would be unjust or inappropriate in the case.

(3) Subsection (2) does not prohibit the court from entering a child support order that is agreed to by the parties and that deviates from the child support formula, if the requirements of subsection (2) are met.

2017 MCSF Section 4.03(A) provides:

When parents reach an agreement that the court should deviate from the formula and connect a property settlement with the child support obligation, the complete agreement must be clearly stated in the judgment of divorce to be given continued effect. MCL 552.605 requires that any property award that is in lieu of child support required under the formula be recorded as a deviation from the formula.

If the court is satisfied with your deviation due to the connection between the property settlement and child support obligation, a court may allow the parties to deviate from the Michigan Child Support Formula. It must be stressed that the court must set forth in writing or on the record all of the sub factors of MCL 552.605(2)(a)-(d) to ensure compliance with the statute in regard to ordering the deviation.

It must be noted that both prior to and subsequent to the enactment of the aforementioned statute, there have been many cases decided by Michigan Appellate courts wherein parties have agreed to a child support obligation that deviated from the Michigan Child Support Formula, in exchange for some other type of consideration agreed to between the parties. The below cases, which encompassed a deviation agreement including terms or property in lieu of strict application of the MCSF, have been determined unenforceable. Even though a section pertaining to stipulated agreements between parents has been included in the MCSF since 1987.

The cases are as follows:

  1. Ballard v Ballard, 40 Mich App 37, 198 NW2d 451 (1972), wherein the proposed consideration for the deviation was the promise of the custodial parent to never seek modification of the amount of child support;
  2. Carlston v Carlston, 182 Mich App 501, 452 NW2d 866 (1990), wherein the proposed consideration for the deviation was to set a ceiling for the amount of the child support obligation;
  3. Laffin v Laffin, 280 Mich App 513, 760 NW2d 738 (2008), wherein the proposed consideration for the deviation was an agreement that the payor has prepaid his child support obligation to the payee, and, in the future, if the payee of child support ever received child support from the payor, the payee would then pay back to the payor, in an equal amount of what the payee received as child support, spousal support to the payor. A reciprocal payment method between the parties.

Answer respectfully submitted by Harvey I. Hauer and Mark A. Snover.

The above response is not meant to serve as a solution to a case. That would require complete disclosure of all facts in the case, including client consultation. Rather, the intent is to provide informal guidance based upon the facts that have been presented. The inquiring lawyer bears full legal responsibility for determining the validity and use of the advice provided herein.

Please send questions for Professor Lex to Hhauer@hauersnover.com or Msnover@hauersnover.com. Include "Professor Lex" in the e-mails subject line.