The Appellate Division in Manhattan has ruled that parents cannot agree in a separation agreement to a definition of emancipation of a child that is narrower than that provided by the New York state statutes. In Thomas B. v. Lydia D, the parents had agreed in their separation agreement that the husband, who was paying child support, would have no further obligation to pay child support if his son, Thomas, Jr., engaged in full time employment.
Thomas then took a job that required 35 hours a week. His father sought a downward modification of child support based on the fact that his son was emancipated. The mother opposed the modification on the basis that Thomas, Jr. was not self-supporting, and had only taken the job in the first place to satisfy the terms of a drug-rehabilitation program.
The Court agreed with the mother, writing: “The parties cannot contract away the duty of child support. Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when the children’s rights are involved the contract yields to the welfare of the children.”
The Court’s point is that the test in New York of emancipation is economic independence, not employment.
What is important here is to recognize the limits of Long Island divorce mediation. Mediation results in a legally binding agreement. While the parties can vary a great many of the terms, those terms are still subject to the laws of the State of New York as they are interpreted by the Courts.
That is particularly true with respect to anything relating to children. The Courts will look to the separate interests of the children, and will not necessarily uphold an agreement between the parents if it is to the detriment of a child.
The point is, in negotiating a settlement in Long Island divorce mediation, when it comes to child support, you are going to have to pay particular attention to the laws that apply to child support and the welfare of children in general. You cannot agree to not support your children.
