Can a husband trade a house in return for wife’s promise not to seek child support in Virginia?
No. In Azhandeh v. Azhandeh, Record No. 1064-10-4 (Va. Ct. App. 2010), the Court of Appeals of Virginia determined that the husband’s appeal was without merit, because the parties’ previous settlement agreement (and corresponding limitations on child support) was null and void.. While the case does not directly concern bankruptcy law in Virginia, the issue has bearing on what financial obligations of the party can be bargained away, and what cannot. In bankruptcy, domestic support obligations have a special status which renders them nondischargeable priority claims under 11 U.S.C. 507 and 11 U.S.C. 523, the determination and enforcement of which are not stayed by the automatic stay under 11 U.S.C. 362.
In Azandeh, the parties had been married for seven years prior to separation. The husband and wife recited an oral agreement in open court which, under Virginia Code Section 20-155 , is enforceable when recorded and transcribed by a court reporter (in effect creating a written agreement). Under the terms of the parties’ recited and transcribed agreement, the mother would have sole legal and physical custody of the child and the father would have visitation rights. The husband agreed to give up his share of marital property to wife in exchange for her promise not to seek child support from him for a period of ten years. Counsel advised the court that the parties had been counseled about the enforceability of such an agreement to waive child support.
Shortly after entry of the final divorce decree, the mother filed a motion for child support in violation of the agreement. The father objected, arguing that the mother violated the mutual agreement. After hearing the arguments of both parties, the Virginia Circuit Court judge entered an order stating that the agreement “relative to child support is null and void because it is violative of clearly established law” and ordered the father to pay monthly child support according to the statutory guidelines.
In his appeal to the Virginia Court of Appeals, the father asserted the trial judge’s decision regarding the provision in the agreement being null and void was incorrect. In response, the mother argued that the Virginia Supreme Court’s decision in Kelley v. Kelley, 248 Va. 95, 449 S.E.2d 55 (1994), applied.. In Kelley, the husband and wife established that the husband would transfer all of the equity in the marital home to the wife in exchange for the husband’s not being responsible for child support, and should a court order child support, the wife would provide reimbursement. The Supreme Court of Virginia held that the agreement was null and void because it violated clearly established law, and it stated, “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.”
Here, although the father argued the facts differed from Kelley because he was only eliminating his child support obligation for a fixed period of 10 years rather than eliminating it completely, the Court of Appeals disagreed and affirmed the divorce court judge’s decision that the parties’ agreement violated the law, specifically Virginia Code §20-109.1, by not allowing the court to exercise its power to determine child support.. Moreover, the Virginia Court of Appeals pointed out that the father had mistakenly combined notions of equitable distribution and child support by arguing that he should be relieved from his obligation because the wife had received all of the equity in the martial residence. In fact, child support was a right of the child, not a right of the mother that she could bargain away. The Court recognized that child support is separate from equitable distribution. The mother did not receive a “huge windfall” of property because the Circuit Court ordered child support; rather, the child obtained her right to receive the support that was legally owed to her. Thus, the Court of Appeals held that the Virginia trial court judge’s determination that the parties’ agreement was null and void was correct and affirmed the husband’s monthly child support payments.
While not discussed in the court’s opinion, an interesting question remains about whether a party to a well-drafted written separation agreement might be entitled to damages from the breaching party for not honoring the agreement.
You should consult with your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., to discuss how to best structure your separation agreement or property settlement agreement.