Part One
Under Virginia law (well, under the law in every state, as far as I’m aware), both parents have an obligation to support their children. For many people, it’s a non issue – parents who are together tend to share expenses and mutually care for the children. For parents who are separated, divorced, or just plain old broken up, child support becomes a different issue entirely.
In Virginia, child support is calculated by using guideline figures. It’s pretty specific – you plug in the incomes of both parties, spousal support received by either party, child support paid to children from other relationships for whom a support obligation has already been established, and then a couple other key facts. Specifically, we need (1) how much is paid each month for work related child care, (2) how much is paid each month for the child(ren)’s health insurance (the amount that covers just the kids), and (3) how many days each parent has with the child.
There’s a lot of information here, so I’m going to split it up into a two part post, with the second half appearing on Friday, the 9th of November. Let’s get started.
Primary physical custody versus shared physical custody
First of all, it matters what type of custody you have, because it ultimately impacts what you’ll receive as child support.
Primary physical custody is when the non custodial parent (the parent who has the child(ren) less) has 89 or fewer days with the child in a calendar year. Shared physical custody is when the non custodial parent has 90 or more days with the child in a calendar year.
Child support when one parent has primary physical custody
When one parent (in this article, we’ll assume it’s mom) has primary physical custody, the total number of days doesn’t count. Child support is one fixed number, depending on the incomes of the parties, and the other factors we discussed earlier. Whether dad has 89 days or is a total deadbeat, child support will be the same.
Under primary physical custody, you’ll receive the most child support possible under the Virginia guidelines.
But how is it calculated? Well, the statute has a table of values. Depending on your combined total gross income each month (your income plus his income) and the number of children you have, there is a specific amount of child support that is payable. According to the law in the Commonwealth of Virginia, this is how much support each child needs in order to have his or her best interests met. If you look at the table, and we use $3000 a month and two children as a benchmark, you’ll see that the basic support obligation is $757.
That $757 is ultimately what child support would be based on; according to the statute, that amount of support is what is needed for children with parents whose combined income is $3000 a month. So, how is it awarded? Under a primary physical custody guideline, that number is divided proportionally between the parties. If husband earns 60% of the income, he’ll pay 60% of that guideline figure.
Child care and healthcare expenses will adjust that number somewhat, too, but the basic support obligation is statutorily determined. Obviously, if you have childcare in the amount of $1,000+ each month, that will skew the numbers pretty dramatically — but the basic child support obligation forms the root of your child support entitlement.
Child support when one parent has shared physical custody
Shared physical custody is much, much more complicated. It’s calculated based on all of the same things, but it also takes into account the exact number of days each parent has in a calendar year.
I know. It’s hard to calculate. I can’t tell you how much time I’ve spent agonizing over little calendars, counting, to try to figure out exactly how many days to attribute to each parent.
Under a shared physical custody guideline, the number is determined on a sliding scale – the more days the non custodial parent has, the less he’ll pay in support. The theory here is that he pays for a greater share of the children’s day to day expenses – their food, electricity, heating, gas to take them to and from their activities, etc. There’s so much more expense involved that he has a diminished responsibility for child support.
But what if he’s NOT paying for those extra things, even though we have shared custody?
Yeah…. That’s definitely a thing.
There’s really nothing that can be done; shared custody automatically requires that his child support be reduced. But that’s not to say there aren’t issues. I’ve heard of tons of dads who expect their child’s mother to provide diapers, food, clothes, toys, sports uniforms, etc., for their time, without them having to do any work themselves.
Sure, you can just NOT send things (like clothes or toys), especially if he has a nasty habit of not sending them back. But I think it’s also a good idea to ask yourself what kind of impact that behavior will have on the children. Or whether it’s very, very important to you that only certain products (like organic or vegan ones) be used on your child.
I once had a couple who refused to send their child back and forth to each other’s homes with the winter coat they paid for. That meant, each time custody changed hands that winter, the child had no coat between mom and dad’s cars. So, yeah – not ideal.
Medication is sometimes a big issue, too, when it doesn’t come back and forth between houses. My advice? Well, it’s probably pretty unsatisfying, but follow the golden rule. Behave towards him the way you wish he’d behave towards you. Send the coats, send the games, send the products, and definitely make sure to always send any medication your child needs. Follow up and ask for it to be returned, if it isn’t, and always return the things that he provides in as good a condition as you received them, if possible.
He may not extend the courtesy right away, but, over time, tensions do tend to lessen.
My child’s father is remarried. Does his new wife’s income matter? What if she covers the health insurance?
This comes up ALL THE TIME. One parent gets remarried, and the other is out for blood – claiming, among other things, that the child support obligation should be amended to include the additional income receive from the new step parent.
But… that’s not the way it works. Neither your child support obligation or your child’s father’s child support obligation will go away just because you’ve remarried. The two biological parents have the responsibility to support the child; that won’t go away unless the parent’s parental rights are terminated (not likely, at least, not because he’s just some guy you don’t want to parent with anymore) or the new stepparent adopts the child (again, not likely – the biological parent would have to sign away his rights).
It’s your income and your child’s father’s income that are relevant here.
Now, if his new wife pays for health insurance, that’s different – in that case, the health insurance premium would still be calculated as part of the child support obligation, even though dad isn’t paying it himself. However, though, if she’s only paying for the health insurance because she already had children on her policy and there’d be no additional cost to add your child, it’s reasonable to ask that the cost of the healthcare be removed from the child support obligation – which could increase the support that you receive!
For more information, stay tuned! On Friday, we’ll post the second part of this article. In the meantime, if you need to talk to a licensed and experienced Virginia custody attorney, give our office a call at 757-425-5200.