There’s no limit to the number of things that can happen to us over time – good as well as not quite so good. Though, over the long term, most people wind up earning more money, that’s not necessarily the case for every person. There can be a lot of factors involved, like global pandemics, redundancy, mental illness, or substance abuse or addiction, just to name a few.
When you first got your child support award established, whether it was by agreement between the parties or established by the judge at your pendente lite or final divorce hearing, you probably felt like that was a baseline number. You probably though that it would go up over time. Because, usually, that’s the way it goes.
When is child support modifiable?
Under Virginia law, anything related to the kids – child support, custody, and visitation – is modifiable based on a material change in circumstances. A promotion – or a demotion – is a material change. Earning more money is a material change, but so is, unfortunately, earning less.
Does it matter what the ‘material change in circumstances’ is, or does anything go?
As with anything legal, though, there are a lot of facts that are going to be really relevant to a determination here. There are firings and demotions that are unavoidable, or at least aren’t necessarily the fault of the party involved. Then there are also firings that are intentional and willful, or that are the result of a larger issue (here, I’d cite issues like disabilities, mental illness, or addiction), which may or may not be the ‘fault’ of the person.
In general, neither one of you can usually just choose to work less. It may be something that the court allows, if its temporary in duration and designed to, for example, help you reach a stronger earning potential over time. I’ve found that, in certain circumstances, judges can be permissive about parents earning less temporarily in order to go to school or do job-related training so that they can secure a higher paying job – but even that’s not always the case.
Imputation of Income
We can easily run into an imputation of income argument. Imputation is what can happen when the court makes you responsible for earning income at a certain level, regardless of whether you’re actually earning it.
The court can’t MAKE you get a job, or MAKE your boss pay you what you used to earn. But what the court CAN do is use the figure – the amount that you were earning – in a child support (or even a spousal support – but that’s an issue for another day) calculation. You may not earn that amount, but you pay support based off of that amount.
When does the court impute income? In specific circumstances, but usually when the court feels that the party earning less is doing so willfully. If he, say, decides to flip burgers instead of keeping his investment banking job, the court could impute income. If you suddenly decide to stay at home or not to return to work when that wasn’t the pattern established during the marriage, the court could impute income.
What if he’s just a deadbeat, or he’s in and out of jobs?
The court often looks at patterns. A deadbeat isn’t someone who left an investment banking job for a burger flipping job; he’s someone who just can’t hold down a steady job. There’s a lot of people out there like that.
The court won’t punish him for being a deadbeat if that’s his pattern. Its where the court sees a big divergence that it starts to poke around and ask questions. But if he’s been in 5 jobs in 5 years, it’s not going to be surprising if the trend continues.
Support can go up and down to reflect changes in income, which can also be up and down. The court WILL punish him, though, for failing to pay the court ordered (or mutually agreed upon) guideline child support figure.
Ultimately, jobs are changeable. And it’s not necessarily that someone is a deadbeat, or disabled, or mentally ill, or just lacking in grit or resolve or some other essential characteristic. The pandemic has taught us that. But it’s not necessarily just even the pandemic. There’s always the risk of redundancy. Companies do layoffs sometimes, for one reason or another.
At the end of the day, bad luck happens to all of us sometimes, and it can impact our earning potential. Outside of a willful choice to leave a perfectly good job, or a decision that seems calculated to put the child’s other parent in a position where they’d have to pay more (or receive less) in child support, the court will, ultimately, adjust the child support award downward.
An award of child support that has been modified downward is still modifiable again if there’s another material change in circumstances. It’s never the end of the road, at least not until they’re 19 or graduate high school.
But the thing about adjusting it downward is that it can always go back up again – remember, best interests of the child.
We think about ‘best interests of the child’ to mean that support goes up. Usually it does. But what best interests means, really, is that the child is entitled to the best that the parent can provide under those specific circumstances. No amount of judicial intervention can prevent a child from feeling the squeeze if the parents’ circumstances change over time, just like the court wouldn’t be able to help in a family where custody, visitation, and child support were not being determined.
Best interests just means that the best the parents can do at the time; best interests is constantly changing and evolving.
While it would be difficult to find your child support is reduced, you should also take heart – it can go back up just as easily as it went down, as circumstances change.
For more information, or to schedule an appointment to discuss your child support with a licensed and experienced Virginia custody attorney, give our office a call at 757-425-5200.