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September 2019

What happens if I don't want child support from my husband in the divorce?

You are getting divorced. You and your spouse agree that you will have placement of the child.  You don't want child support from your spouse.  What might happen?

First, child support is a child's right to be supported by both parents.  As a custodial parent with placement, when child support is ordered, the child support actually belongs to the child and you are entrusted as the parent with those monies for the support of the child.  An award of child support by the Rhode Island Family Court carries with it the presumption that as a custodial parent you will use the child support in the child's best interests.  These best interests typically including providing the child with a place to live, food, heat, and clothing, etc.

You are not allowed to "waive" child support for your child.  The underlying principle behind the prohibition on the waiving child support is that it is never in the best interests of a child for any parent to waive financial support for a child from the other parent. One concept fundamental to this principle is that a "waiver" is most often considered to be permanent and by Rhode Island law child support is subject to review and modification by the family court until the minor child is emancipated. Therefore, a waiver is not only contrary to the best interests of a minor child but is contrary to Rhode Island law and therefore would be unlawful.

The question may more appropriately be, "Can a Rhode Island Family Court Judge put to through a divorce matter without awarding either parent child support?"  The answer to this question is "Yes." 

Though either party may still return to court in the future to have child support set or modified, a judge has the power to leave child support "open."  Leaving child support "open" essentially means that based upon the circumstances as presented that the judge orders that the issue remains open with no award to either spouse and may be addressed in the future if and when either party returns to court.

The question then changes to, "Under what circumstances will a judge leave child support "open?" There is no concrete answer to this question since the circumstances of every case are different. 

Ultimately, the parties need to reach agreement that child support should remain open and they must also present to the court a substantial reason as to why it is in the best interests of the child to leave child support open.

Example:  Sandy and Bill have three (3) minor children ages 14, 15 and 17 and a home in Warwick, RI.  They reached a Marital Settlement Agreement to resolve their divorce. Sandy earns $30,000 per year. Bill earns $67,000 a year.  Sandy cannot afford to buy Bill out of his interest in their home.  Sandy wants to continue to live in the home until the youngest child reaches age 18.  Bill wants their kids to be stable and he agrees they should all stay in the house until their youngest child reaches age 18. 

However, Bill could never afford to continue to pay the mortgage on their home, the calculated Rhode Island Child Support, health insurance for the children, his share of the children's medical expenses and extracurricular activities, and a small apartment with minimal expenses for utilities. 

Sandy and Bill with the help of their attorneys reach an agreement that Bill will be solely responsible to pay the mortgage on the home until their youngest child reaches the age of 18 in lieu of paying child support and they will ask the court to leave child support open.

At their divorce hearing with the help of their attorneys, they provide their agreement and explain through their testimony that they are requesting that the court approve their agreement and leave child support open for now.  In short, the request to leave child support open is because even though the three (3) children will continue living with Sandy, Bill will be paying the house mortgage, until the youngest child reaches 18 at which time they will sell their home and split the equitable proceeds 50/50.  They point out that the house mortgage is considerably more than what Bill's child support would be and that the children's stability by staying in their own home through high school is in their best interests physically, mentally, socially and educationally. 

The court finds that the circumstances warrant leaving child support open as long as Bill continues to pay the mortgage on the home.

There are many different circumstances that may qualify for leaving child support open and they are not limited to divorce situations.

Many times it is a matter of whether leaving child support open is fair and in the best interests of the children.  More often than not it is your lawyer's approach when making the request to leave child support open that is the greatest factor as to whether the court accepts or rejects the request.