Virginia Child Support: A Comprehensive Guide
Child support can be a confusing topic. While this guide is a useful tool and a great place to begin, it is not a substitute for an attorney. We strongly recommend speaking to an attorney after you read this guide.
Purpose of Virginia child support laws
Virginia’s child support laws, set forth predominantly in Virginia Code Sections 20-107.2, 20-108.1, and 20-108.2, ensure that both parents properly care for children. These laws also set forth a guide for determining the appropriate amount of child support to be paid.
Parenting time and child support laws
When a parent has 90 days or less of parenting time or visitation per year, the Virginia Sole Custody Child Support Guideline is used to calculate the amount of child support. This guideline is utilized whether the parent has 89 days of visitation or only one.
When a parent has more than 90 days of parenting time or visitation per year, the Virginia Shared Custody Support Guideline is used to calculate the amount of child support. Generally, child support decreases as the parenting time increases over 90 days. In order to “count” as a day, the parenting time has to be at least 24 hours. An overnight visit (such as from Wednesday evening to Thursday morning) is counted as one-half of a day.
When does child support stop?
In Virginia, child support is usually payable until age 18. However, it can continue to be paid if the child is a full time high school student, not self-supporting, and living in the home of the party receiving support. In this case, child support continues until age 19, or until the child graduates, whichever comes first.
The court may also order that support be paid or continue to be paid for any child over the age of 18 who is severely and permanently mentally or physically disabled, and the disability existed before the child turned 18 (or 19 if the child was still being supported while a full-time high school student as described above), unable to live independently and support himself, and residing in the home of the parent seeking or receiving support.
It is important to note that parents can agree to pay child support for a longer period than a court could order on its own, such as until the child finishes college, etc.
The court and Virginia’s child support guidelines
The court usually orders the amount of child support calculated by the guidelines (known as “presumptive child support”). There are cases, however, when a court will award more or less than the guideline amount, known as a “deviation” from the guideline. Reasons that a court would deviate from guideline or presumptive child support are listed in Virginia Code 20-108.1, and include the following:
- Actual monetary support for other family members
- Arrangements regarding custody (including visitation transportation expenses)
- Imputed income to a parent who is unemployed or voluntarily “under-employed”
- Childcare costs incurred by a parent who is attending an educational or vocational program likely to maintain or increase the parent’s earning potential
- Debts of either party arising out of the marriage for the benefit of the child
- Direct payments ordered by the court for life insurance or education benefits for the child
- Extraordinary capital gains
- Special needs of a child
- Independent resources of a child
- Standard of living of the child during the marriage
- Earning capacity, obligations, financial resources and special needs of each parent
- Disposition of marital property that is income-producing
- Tax considerations
- A written agreement between the parties regarding child support
Virginia child support calculator
There are three main factors used to determine the amount of child support:
- Each parent’s gross income
- The number of children entitled to support
- Amount of parenting time each parent has
The court will also factor in work-related childcare costs and that portion of the monthly health insurance premium that is attributable to the children’s coverage.
[Related: Financial Planning During Divorce]
Determining income
Child support calculations are based on the parents’ gross incomes and include all forms of income from all sources. Salaries, wages, bonuses, social security benefits, disability or veteran’s benefits, gifts, awards, spousal support, commissions, rental income and pension payments are all included in the legal definition of income.
Tax returns are usually good places to start when evaluating a parent’s income.
Childcare costs
The cost of childcare due to employment or necessary education is factored into the calculation of child support. Like health insurance premiums, these costs are allocated on an income pro-rata basis.
Discretionary child support add-ons
The laws in Virginia give the courts the ability to order parents to share the costs related to a child’s private school education and/or extracurricular activities in certain circumstances. These can vary from case to case and are dependent on the courts’ discretion.
Unique issues
- Occasionally, parents will dissuade a child from wanting to spend time with the other parent in order to increase his/her own custodial time (and, therefore, increase child support). If this is occurring, swift legal action is usually recommended as this can develop into a larger problem known as “parental alienation” or “parental gatekeeping.”
- Parents are sometimes deceptive about, or try to hide sources of, their income. In these circumstances, the other parent can consider employing a forensic accountant to assist with the discovery of hidden income.
- Sometimes a parent willingly remains unemployed in order to avoid paying child support. A court can, however, impute income to a parent who is voluntarily unemployed or underemployed, and calculate his or her child support obligation as if they are actually working and earning a wage.
- Occasionally, parents who are awarded more than 90 custodial days per year then fail to exercise all of their time (but continue to pay child support pursuant to the Virginia Shared Custody Support Guideline). In this circumstance, the failure to exercise full custodial time can constitute a “material change in circumstances,” enabling the court to review and/or recalculate child support.
How do I begin the process?
The process normally begins when the Complaint for Divorce is filed in the Circuit Court or a Petition for Child Support is filed in the Juvenile and Domestic Relations District Court. After that, the discovery process will commence, requiring an exchange of financial information, and there will be a child support hearing. At the hearing, each parent will testify and present evidence, and then the court will make a ruling. This can be a very complex process so we suggest having an attorney represent you.
[Related: Child Custody Agreements]
Retroactivity
Sometimes, a parent can be ordered to pay child support for earlier months, usually going back to the date when a Petition for Child Support or Complaint for Divorce was filed. This is considered retroactive child support.
Modifying a child support order
Virginia law does permit the modification of child support orders due to a material change of circumstance that justifies an increase or decrease in the amount of support. Examples include a change in parenting time, a change in work-related childcare costs or health insurance premiums, or a change in either parent’s income. Modification orders can, in the discretion of the court, be retroactive to the date the request was served on the other parent.
Appealing Virginia child support orders
If you feel like the judge made the wrong decision, or failed to consider important factors, you may be able to appeal the decision. There are very short deadlines associated with filing an appeal, such that it is imperative to seek legal advice immediately following the entry of an order that you believe to have been in error.
Summary
Child support can be a difficult topic for many people to understand. If you are considering filing for divorce or child support, contact Cooper Ginsberg Gray Family Law and let our experts help you.