Lawyers Manual - Unified Court System

Negotiating an Agreement
When an Agreement May Be Desirable
Victim Who Needs Child Support 151
Reaching an agreement allows the parties to include terms that might not be
ordered by a court — even provisions that cannot be ordered by a court. Some
examples follow:
1. Extending child support obligation to the obligor’s estate or
beyond the child’s twenty-first birthday (in order to finish
college or because of a handicapping condition).
2. Penalties for failure of visitation. An agreement might include
a requirement that the custodial parent can be compensated by
payment of a stipulated amount if the obligor parent fails to
comply with the visitation set out in the agreement.
3. Income tax provisions, such as who may take the dependency
exemption, which belongs to the custodial parent; 15 who may
have head of household filing status; 16 what portion of the
payment will represent tax-deductible spousal support; 17 and
who may take the child care credit.
Pitfalls of Negotiation
Vigilantly guard your client’s right not to compromise simply because she
has agreed to discuss settlement. Remember that the end product of a negotiation
or mediation session need not be an agreement. Fight the myths that work
against the custodial parent seeking adequate child support. For example, the
custodial parent is sometimes cast as the litigious one if she refuses to accept
offers made during negotiation, while the abuser is seen as not willing to meet
her unreasonable demands. A victim of abuse may be particularly susceptible to
such insinuations, and her attorney should dispel them. The non-custodial parent
who will not agree to the presumptive amount of child support is the one who is
refusing to settle and is causing your case to go before the court.
Be particularly wary of requests by the abuser — or the court — to enter
into mediation. If your client did not fare well in negotiations with her abuser
while they were together, if he has withheld financial information from her, or if
she has any fear of him, they are not good candidates for mediation. Many
mediators are aware of this imbalance of power and will decline to serve once it
becomes clear that domestic violence is involved, but you cannot count on this
and may have to be insistent. Mediation is not appropriate for a victim of abuse.