Child Support and Deployment

Posted on Nov 30, 2015 by Katie Carter

Most of the time, child support is easy peasy. It’s based on a formula, so, basically, we just fill in the blanks and the number pops up.
Of course, if yours is a shared custody situation, it can be a little more complicated than in a traditional primary physical custody type situation. How so? Well, with primary physical custody, the non custodial parent has 89 or fewer days with the child in a calendar year. As far as it relates to child support, with primary physical custody, it doesn’t matter whether the non custodial parent (for the sake of this article, let’s just call him dad, though, of course, in some cases mom could be the non custodial parent, too) spends no time with the child at all or takes the entire 89 days he is allotted. Child support remains the same.
With shared physical custody, on the other hand, where the non custodial parent has 90 or more days with the child during the calendar year, child support changes. Instead of being set at one flat rate, child support is based on a sliding scale. If dad has 90 days with the child during the year, he’ll pay more in child support than if he split the year exactly in half with mom and took the entire 182.5 days. The theory here is that, if dad is spending more time with the child, he’s paying for more of the day to day needs of the child. It’s his electricity bill that is keeping the child warm. His groceries are finding their way onto the child’s plate. His warm water is fueling the child’s baths or showers and keeping his clothes clean. Dad pays for extracurriculars or fun things to do on weekends or days off from school, simply by virtue of the fact that he has more of this time with the child than he would if mom had primary physical custody instead. Does it always work that way? Of course not. But, still, that’s the theory.
Still, regardless, most families are able to work it out. Things are often pretty contentious in the beginning, but, over time, tensions cool and families are able to come together to focus on what’s really best for the child. Custody and visitation work out, and, because child support is rarely something worth fighting over, the child support quickly follows. It’s really easy—once custody and visitation are determined, the law is pretty specific about how child support will be handled.
Another thing about custody and visitation that helps make things pretty streamlined is that, for most families at least, custody and visitation stay pretty much the same. Though everything relating to kids (specifically, custody, visitation, and child support) are always modifiable based on a material change in circumstances, things tend to stay the same for a long-ish period of time. Every couple of years there’s probably a change—as the parents work up the corporate ladder and start earning more (and have to pay more in child support), as different visitation arrangements become more feasible for older kids (like overnights or longer vacations with one parent), and so on, things have to change.
Of course, that doesn’t necessarily mean that all these parents are going to court. Though that may be necessary in the beginning, in a lot of cases these things simmer down over time. Parents who formerly couldn’t be in the same room can often negotiate changes and updates to their custody and visitation arrangements themselves, without needing the help of a judge. Some families choose to use the court system instead, which is also fine—after all, that’s what it’s there for!
Still, most of the time, these families are there full time and able to keep a fairly consistent schedule.
For others, like military families, determining what custody and visitation should be like, and, by extension, how much child support should be paid, can be complicated.

Custody and visitation for military families

Custody and visitation can be determined in a number of different ways. Usually, like a divorce, it’s either handled (1) by agreement or (2) by the judge.
If you reach an agreement together, there’s really no limit to what you can do. Leaving things up to the judge, on the other hand, can be risky.
To the extent that you can, I encourage you to talk things over with your child’s father and figure out how you plan to handle issues that relate specifically to military families. If your child’s father is deployable (or, if you’re the service member, and you’re deployable), you’re going to need to talk about what will happen in the event of a deployment. Does custody then go to mom while he’s gone? Does he want to delegate his visitation (or some portion of it) to another person or persons—like his parents? If he does, is that okay with you?
Once custody and visitation is handled, it makes child support flow a little more easily. In the event of a deployment, you can do a couple of things. If mom is taking the kids while dad is away, he can pay child support according to primary physical custody guidelines, or he can pay it according to shared guidelines, giving the custodial parent credit for the extra time that dad is gone where he won’t be exercising custody and visitation.
If, on the other hand, grandma and grandpa are taking the kids in dad’s place, child support pay stay the same. If it doesn’t increase mom’s time with the kids, you might just consider it a wash.
Of course, if he receives extra pay (like hazardous duty pay or something similar) as a result of his deployment, you may want to re-calculate child support with the extra pay in mind, at least for while he’s deployed and earning extra.
Most military families include a provision regarding deployment and how it will affect custody and visitation in their separation agreement, if their case is part of a larger divorce action, or in their custody and visitation arrangement. The more forward thinking your document, the better prepared you will be to handle anything that comes your way.
Already have an agreement, and didn’t think about deployment? That’s okay. You can negotiate an addendum to your agreement that spells out how you’ll handle it. Can’t get him to agree? You may have to go to court.
There are no rules, and you should feel free to handle things in a way that promotes the best interests of your child. Of course, military life is, by its very nature, difficult to predict, but the more you plan ahead, the better you’ll feel about tackling deployments when they come.

What happens if he gets a new permanent duty station and has to move? Do I have to go, too?

Relocation cases are difficult, right? That’s what you’ve always heard. And, if you were the one planning on moving (especially if you were planning on moving while your husband was still stationed here), any attorney you might have talked to probably told you that you were fighting an uphill battle. Right?
So, what happens if he gets stationed elsewhere? It’s not like he can say no, right? When Uncle Sam says go, you go! But how is that different from your move, and what choices are available to you now?
It may seem like things are applied inconsistently, or at least to your disadvantage, but that’s not really the way it is. In reality, you’re free to move, too—for your job or for any other reason—it’s just that you’re not free to up and take the kids with you when you go. It’s the same for your husband. He’s free to go, to follow Uncle Sam’s orders or do whatever else, but he can’t take the kids when he goes. If he goes to court and asks to move with the kids, he’s going to face the same uphill battle as you would.
Of course, once he leaves, you’re going to be much freer to move, too. There’s not much keeping you in Virginia if he gets transferred, say, to San Diego. You might have an uphill battle on your hands still if you wanted to move internationally, but otherwise you’ll probably find that your path is paved much more smoothly once his permanent duty station changes.
The court can’t make you move, either. If you want to stay in Virginia, you’re certainly entitled to do that.
If you’re hoping to move, his permanent duty station changing is probably the best news you could hope for.
For sure, military life presents its own unique challenges. But at our firm, we’re pretty well versed in helping moms navigate tricky custody and visitation issues that arise when one of the parents is an active duty military service member. I guess you could say we’ve had a case or two like this—or maybe even hundreds.
To request a free copy of our military divorce book, to get more information about upcoming custody seminars designed to help moms represent themselves in Virginia juvenile court cases, or to schedule a meeting with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200 or visit our website.