You can get a court order establishing child support in one of two ways.
One: You can file a petition with the juvenile court for custody, visitation, and/or child support, go to court, and ask the court to establish child support (as well as, potentially, custody and visitation). This can be either an initial determination, meaning that custody, visitation, and child support have never previously been stablished, or as a modification if there has been a material change in circumstances since the entry of the last order.
Two: You can negotiate a signed separation agreement, if you’re married but separating and intend to divorce, or a custody agreement, if you’re not married or you’re modifying an already-existing custody agreement or order. You can petition the court to have your agreement entered as an order and then it becomes an order of the court, with the same force and effect as if you had gone to court, litigated, and the judge had issued an order.
In either scenario, your order is binding and, as far as child support is concerned, creates a judgment. If your child support is payable on, say, the first day of each month, and he doesn’t pay, he starts creating an arrearage.
If you’ve filed a petition with the court for child support, you can ask that it be awarded retroactively to the date that you first filed your petition.
Actually, in Virginia, you can even technically have an arrearage from the moment child support is ordered. If you file child support petitions, the court can award child support back retroactively to the date that your petitions were filed. So, if you file in January and you don’t get into court until May, you can ask that the court backdate the child support amount that is owed from May to January, meaning that your child’s father starts out owing you.
That doesn’t mean, in general, that he’ll have to pay the full sum up front; most of the time, the court will order that he pays off the arrearage, a little at a time, over the next several months until the total amount is paid. It is also possible, depending on the circumstances, that the court could order that interest be added at the current statutory rate of interest for judgments.
From a strategic standpoint, it may make sense to file for child support fairly early on in the process, not because you hope to litigate (you may eventually reach a settlement on child support and/or any other related issues), but because it protects your access to child support back to the earliest possible date. Sometimes, it can take a period of months to get a trial date or to work through the other issues involved in a case. By filing a petition, you’re essentially putting a pin in the issue and making sure that the court comes back to it – and awards you the difference that the delay in time has cost you – when appropriate.
After the initial determination of child support – once there is a court order in place – he also has an obligation to pay, unless and until that order is modified.
Then, once child support is established, your child’s father must pay it. The child support award continues, and does not modify, unless one of you petitions the court for a modification (based on a material change in circumstances consistent with the best interests of the child) or the child ages out. In Virginia, child support continues until the child turns 19 or graduates from high school, whichever occurs sooner. You don’t need to go to court to terminate child support, though.
If you modify, you’ll modify in the same way – either in court or with an agreement that is later entered as an order. Either way, the force and impact is the same and, from the moment that agreement/order is entered, it becomes the new standard.
If he’s not paying, what should I do?
If he isn’t paying, you’ll have to hold him accountable. You can file petitions related to nonpayment of child support and, ultimately, he can face fines, jail time, and even a finding of contempt for nonpayment.
But you don’t have forever. In Virginia, you have to bring a cause of action for nonpayment of child support within 20 years. ( I know – that’s a pretty long time, all things considered!) Each individual payment becomes its own separate judgment with its own 20 year window for enforcement, too, so you’ll want to file within twenty years of the date the FIRST child support payment was not paid.
It’s a ‘statute of limitations,’ meaning that you can’t bring a cause of action after the 20 year window has expired. It’s 20 years for each specific debt, though, not 20 years for the entire collective unpaid child support amount. One payment (or three or five or even ten) exceeding the 20 year limit would not reduce your ability to collect on other child support payments that were not made that were within the 20 year window.
Chances are, you’d do this anyway; after all, you need child support now, not 20 years from now. Still, you should know that your options don’t continue indefinitely and that there is a timeline involved, even though – all things considered – it’s a fairly generous one. Still, it’s important to know!
If he has been ordered to pay child support, it is not optional to him. He can’t decide when to pay support or even monkey around with dates and amounts. He can’t deduct his expenditures during his parenting time from the amount he’s ordered to pay.
For more information about child support, child custody, and/or visitation cases, visit our website at hoflaw.com, download our custody book for Virginia moms, or register to attend an upcoming custody seminar.