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Agreement Between Parents
As discussed in our series of articles concerning initial awards of child support in Georgia divorce and child custody matters, the parents in a divorce matter may come to an agreement regarding the terms and amount of child support. Although this agreement between the parties must be made with the Georgia Child Support Guidelines in mind, parties to a divorce action are free to agree to terms concerning child support that a court may not otherwise order.
For example, parties to a divorce may agree in their marital dissolution or settlement agreement that child support is to extend through college or that one or both parents are obligated to pay for the child’s postsecondary educational expenses. In this situation, if a party to the divorce action voluntarily assumes a contractual obligation that could not have otherwise been imposed by a court, that obligation may not be involuntarily modified by a court subsequently. See Jones v. Jones, 244 Ga. 32 (1979). In other words, if one parent agrees in the marital dissolution agreement to assume total financial responsibility for the minor child’s college education expenses, that parent may not subsequently petition the court to modify that term of the agreement, because Georgia court may not modify a provision that it could not otherwise impose. Lane v. Titus, 259 Ga. 264 (1989). However, such a provision may be modifiable if the parties, in their original agreement, provided that such provision may be subsequently modified either by a court or by a voluntary contract between the parties. Katz v. Katz, 258 Ga. 184 (1988).
On the other hand, if the parties to a divorce action seek through their settlement agreement to waive child support, a court may subsequently modify this provision of the parties’ agreement because the right to child support belongs to the minor child and parents may not legally waive it. Crosby v. Crosby, 249 Ga. 569 (1982). In order to modify the provision of the parties incorporated settlement agreement concerning child support, the custodial parent must simply petition the court for a modification of child support. Id. See also Livsey v. Livsey, 229 Ga. 368 (1972).