Child Support: An Overview
Child support is almost always a contentious issue between separated parents. Fortunately, the Virginia General Assembly created guidelines that help courts across the Commonwealth determine appropriate child support awards. These guidelines are set forth in Virginia Code § 20-108.2 and establish a rebuttable presumption as to the correct monthly child support obligation to be awarded. The presumptive support obligation is determined based on mathematical formulae that takes into account each parent’s income, support by either parent of other children, number of children involved in the current case, work-related childcare costs, and the cost of medical insurance for the child(ren). Virginia courts will generally award whatever number the guidelines provide based on the relevant information, unless it is found that the application of the guidelines would be unjust or inappropriate. If a court makes this finding, it may deviate from the guidelines and instead award a higher or lower amount depending on the circumstances.
There are three types of guidelines for determining child support in Virginia: sole, shared, and split custody guidelines. The guidelines a court will use depend on the child(ren)’s living situation. The sole custody guidelines apply where a child lives primarily with one parent. The shared custody guidelines apply where the non-custodial parent has the child for more than 90 days per year. The split custody guidelines apply where at least two children are involved and each parent is the primary custodian of at least one child. Because each set of guidelines use a different mathematical formula, it is very important that a parent consult with a knowledgeable child support lawyer to ensure an accurate calculation.
In Virginia, A non-custodial parent does not have to pay child support until ordered by a court or the Department of Social Services’s Division of Child Support Enforcement (commonly referred to as "DCSE”). Although an order may not be awarded for weeks or even months after the filing of a petition for support, a non-custodial parent’s support obligation begins on the date the petition is filed – NOT when the order is entered. For example – a mother files a petition for child support on January 1. On May 1, the court orders the father to pay $1,000 per month in child support. The father’s support obligation started on January 1 even though a court had not yet determined how much support the father had to pay. This means that the father will start out owing a balance of $5,000 ($1,000 x’s 5 months), unless he has provided some support after the filing of the petition and before the entry of the order. If the father paid support before the entry of the order, that amount will be subtracted from the total outstanding arrearage (back child support). If an arrearage exists when the support order is entered, a Virginia court will usually require the paying parent to provide a set amount of additional support until the arrearage is eliminated.
Child support is modifiable upon a showing by either parent that there has been a material change in circumstances since the entry of the last order that warrants a new order. Keep in mind that only the court may modify a child support order. The parties are never able to change a court order without the court’s approval. As such, it is vital that a parent move the court to modify a standing court order as soon as possible if there exists a material change in circumstances. Unlike initial support matters, a modified court order is not retroactive to the date of filing; however, the court may make the new order retroactive to the date that the opposing party was served with notice of the new court action.
Absent a modification of a child support order, the paying parent’s support obligation will usually continue until the child reaches the age of 18 years or is emancipated. Support will continue for a child over the age of 18 who is a full-time high school student, not self-supporting, and living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever occurs first. A court may also order that support be paid for any child over the age of 18 who is severely and permanently mentally or physically disabled, unable to live independently and support him/herself, and is residing in the home of the parent seeking or receiving child support.
If you have a child support issue, make sure you consult with an experienced child support lawyer to review your legal options.