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Sketch Decree Inconsistent with Post-Nup

A Roanoke County Circuit Court declines to enter a proposed divorce decree that is inconsistent with the parties’ post-nuptial agreement, with regard to child support.

The proposed decree says the parties understand that support of the infant child is a right of the child and not of the parties and either party file petition for child support for the benefit of the child.

In my view, the parties’ understanding, as stated in the sketch decree, is inconsistent with the explicit language of their post-nuptial agreement. That agreement provides for the parties to have joint legal custody of the son, who just turned 16, “with physical custody being awarded” to the father, and liberal visitation to the mother. After discussing medical expenses and health insurance, the agreement states that the parties agree the wife will assist husband in payment of clothing and other school expenses for the benefit of the child and there shall be no child support awarded to husband to be paid by wife.

The proposed decree would ratify, affirm, approve and incorporate the post-nuptial agreement and direct the parties to strictly abide by the terms of the property settlement agreement.

Inconsistency between the agreement and the proposed decree is not the greatest problem. Return with me now, if you would to the days of yesteryear and Kelley v. Kelley, 248 Va. 295 (1994). That case held that the parties’ agreement that the husband would never be responsible for child support was null and void.

I am satisfied that a provision “that there shall be no child support awarded to Husband to be paid by Wife” is, like the provision in Kelley, contrary to public policy. Parents cannot contract away their children’s rights to support nor can a court be precluded by agreement from exercising its power to decree child support. Yet that is precisely what the language of the post-nuptial agreement attempts to accomplish.

A court likely would take a different view if the post-nuptial agreement combined with the mother’s undertaking to assist with educational and clothing expenses with language similar to that contained in the sketch decree – but it does not. Because I find the child support provisions of this agreement are not valid, I cannot approve or incorporate the post-nuptial agreement.

There is a second (and less significant) problem with the decree that I mention now in case the parties decide to amend their post-nuptial agreement. Even if the parties were to amend their post-nuptial agreement and tender both an agreement and a decree containing language like that in the sketch decree, the decree could not be entered unless it contained the findings – including the amount of the presumptive child support award – required by Va. Code § 20-108.1.

Whittaker v. Whittaker (Weckstein) No. CL 13-288, Feb. 13, 2013; Roanoke County Cir.Ct.; Charles B. Phillips, Esq. VLW 013-8-016, 3 pp.

VLW 013-8-016

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