Child support is not optional. There are very few black and white, hard and fast rules in family law, but this is one of them. Though it’s theoretically possible, especially in a shared custody situation, that the parties incomes could be close enough and the amount of time each parent spends with the child could be substantial enough that no money would be required to be paid back and forth each month by the parties themselves, that does not mean that there’s no child support ‘paid’ by the parties.
In Virginia, the child support guideline is set by a formula. A few specific things go into that formula, like the monthly income of each party, the amount the parties pay for work related childcare, the amount they pay each month for health insurance (for the children only, not the cost of the total overall policy), and the amount of time the parties spend with the children. As far as the amount of time spent, in a primary physical custody situation, it’s a flat amount – whether the non custodial parent (the parent who has the children less) spends a full 89 days with the children during the year or whether they don’t see the children at all. In a shared physical custody situation, it’s on a sliding scale – the more time the non custodial parent has with the child, the less he (or she) pays in child support – so the exact number of days that each parent has goes straight into the formula.
Other factors, like the support a parent pays for the benefit of other children, can also go into the formula, but that’s less common. Still, it’s something to be aware of.
It’s also theoretically possible for the court to deviate from the statutorily-established child support formula. A deviation can be upwards or downwards, but both are fairly uncommon. In the event that we DO see a deviation, it’s for pretty dramatic extenuating circumstances – and often temporary in nature.
The whole point of child support is for the ‘best interests of the child’ the standard established by statute that we use for custody, visitation, and child support determinations. To put it simply, the children are entitled to the benefit of the best the parents can provide under the circumstances. ‘Best interests’ is a moving target, though; what’s best for the kids when they’re 2 is different than what’s best at 6 or 10 or 12, so anything relating to the children is modifiable based on a material change in circumstances.
So, child support can vary – depending on how much time you have with the children, on whether an upward or downward deviation is ordered, or even because a material change in circumstances has occurred and child support is modified. But child support is not a wishy washy thing it’s required by the law.
Once, I had a case. Well, I’ve had lots of cases, but I had a case that was pretty relevant for this point that I’m making today. It was a pretty hotly contested custody case, but it came time for the settlement conference, and the GAL made a really strong recommendation in favor of my client. (Hey, it’s true – she’s great.) Dad was a basket case, and it really showed. However, despite having requested it in discovery, he had not provided updated income information. But I was up against a wall; the GAL came down in favor of my client, and I could get an agreement signed that day.
So, we put in the agreement that Husband agreed to pay support by the guidelines, and we left it at that. Later, once we did have the LES statement from him, he refused to pay the number that the guideline calculation generated. I guess he was surprised at how much it was. I’m not sure.
So, there was nothing else to do but have a hearing on child support. Actually, the judge was pretty miffed. He told both me and opposing counsel that we had mismanaged the case if we were using his time to determine this issue. I’m not quite sure how he would have managed to force husband to pay guideline child support when he was refusing to do it point-blank, but I digress – sometimes, court is a little unfair.
But sometimes it’s not. We stipulated to all the numbers; there was no question who was earning what, or what our custodial arrangement was. The judge ordered support by the guidelines, even though husband made an impassioned argument that his defending against the case (never mind that he was the plaintiff, so he filed first) had put him in a position that meant he couldn’t afford support. Plus, he said, he was military and he had to move.
That last comment put the judge over the edge. Sometimes court is unfair, and sometimes it also isn’t. The judge said, “The military paid you to make that move, right?” Husband agreed, but still argued that his expenses were such that he couldn’t make the guideline child support payment. And then the judge made a comment that I liked so much that I’ve used it myself, in this and many other articles and conversations. He said, and I may be paraphrasing a little:
“It’s not a question of, after you pay your bills, how much you have left to pay child support. Its, after you’ve paid child support, how much do you have left to pay your bills?”
That, and he awarded attorney’s fees to my client. Sometimes, court is fair.
You see, you really can’t refuse to pay child support. The amount is mostly pre-determined, with very few deviations, too. If your child’s father doesn’t pay child support, he could wind up with sanctions, like having to pay your attorney’s fees (as in my case here), or even, in extreme cases, face jail time. Unpaid amounts – we call them arrearages – can be awarded to be repaid, with interest, too. To have an arrearage can hurt your credit and result in tax returns and other government benefits being garnished to satisfy your child support obligation, too.
He can ignore it, but only for so long. It will definitely come back to haunt him. So, if your child’s father isn’t meeting his child support obligation, file a show cause. It probably won’t take too many court appearances to convince him that there’s not much he can do to dodge it.
For more information, to schedule a consultation, or to get a copy of our custody book for Virginia moms, visit or website or give us a call at 757-425-5200.