When drafting a child support provision of a separation agreement parties must contemplate how to best meet the needs of their children or risk having their agreement invalidated for their failure to do so.  To illustrate the point we examine the case of Rome v. Rome in this article.

In the New York County Supreme Court case of Rome v. Rome, an ex-husband requested that the Court modify a separation agreement he signed with his ex-wife in 2008.  The separation agreement stipulated that the father would pay $5,000 per month in child support, while the children lived with their mother, and that such payments would end if the children were to move in with the father.   The separation agreement further added that on the possible event the parties’ children did in fact move in with their father, that the mother would not be required to pay periodic child support to the father.  At the time the separation agreement was signed, the children were living with the mother but the children subsequently moved in with their father since the mother relocated to Florida.

The ex-husband after several years is seeking a modification of the parties’ 2008 separation agreement, requesting that the Court to order his ex-wife to pay child support.  The ex-wife has however argued that since the separation agreement she signed with her ex-husband anticipated such a change in circumstances there is no sufficient basis to effect a modification.  The Court responded ruled against the mother saying:
“parents cannot contract away the duty of support… [the agreement] is not binding and against the public policy of providing for the support of children. The relevant inquiry is whether the children's needs are being met as their needs will take precedence over the Agreement.”

So in this case even though both parents agreed to the terms of the agreement it was still invalidated by the court for its failure to provide for the needs of the child.