When the law isn’t fair

Posted on Jun 5, 2020 by Katie Carter

One of the attorneys in our office recently had a consultation with a woman who couldn’t get what she wanted. It wasn’t her fault; it wasn’t our fault. In this case, the law simply didn’t allow for it to happen.

What did she want? She wanted child support to extend for her nearly-adult child to allow her to support him while he was in college. It’s a reasonable thing to want, right? I mean, it’s not like children get less expensive as they age! On the contrary, I think a college age kid is probably one of the most expensive ages in all of childhood.

The problem, though, is that, in Virginia, child support terminates when the child turns 19 or graduates from high school, whichever occurs soonest. That’s the law. I didn’t write it.

Is it fair? Is it reasonable? I think you could argue both sides, but I tend to agree with this would-be client; it’d be awful nice if a dad still had some duty to continue to support a college bound kid. As a former college kid myself, I know how expensive it is, and I can only imagine how hard it be for one parent to try to carry the load themselves. Especially in this day and age, what with the pandemic and the recession, and so many people being laid off, etc. It’s not exactly an easy time to shell out extra money to support a kid.

Though some states allow for support to be awarded for college aged kids, Virginia doesn’t. In fact, the only way child support can be extended at all past the statutorily defined period of time is when the child is suffering under some disability. And we’re not talking, like ADHD. We’re talking about a pretty crippling disability where the child isn’t able to live on his or her own. A college student just doesn’t fit this mold.

I mean, if I’m being pedantic, I guess it is fair, in the sense that this standard is applied equally across the board. Parents in Virginia are NOT getting support for their college aged kids. At least, not unless the child’s father is willing to agree to do it in the spirit of generosity or for the filial love that he bears his children.

You can’t FORCE him to agree though, because the judge can’t force him to pay this kind of support. If he does, he does so out of generosity and not because of a legal obligation. There is no legal obligation for him to do this.

And, in fact, if the shoe were on the other foot – if you were the higher wager earner and he was trying to compel you to sign an agreement obligating you to pay child support past what the statute requires – I would try to dissuade you. Why? Well, I think it’s one thing if you WANT to pay college tuition, or continue to pay child support (assuming you were paying before). But I wouldn’t want you to contractually obligate yourself to do so. What if you lost your job? What if your situation changed? What if there was, like, a global pandemic, and the value of your accounts dropped precipitously overnight, and you were furloughed? Hey, if we know anything, we know that can happen to millions of Americans without so much as a by your leave! Better to do what you can, when you can, without a contractual obligation than to sign something that you don’t legally have to sign and run the risk of wishing later that you didn’t sign it at all.

Because, of course, as we discussed the other day, you can be held to an agreement once you’ve signed it. That’s actually the whole entire point of a contract, so… In that sense, you would change the law as it applies to you, and the judge could force you to perform what you agreed to do.

So, in all likelihood, he won’t sign an agreement that requires him to do more than the statute already requires of him. Maybe he will do more, when it comes down to it. But I wouldn’t be surprised if he wouldn’t agree to it now.

Maybe he won’t, too. Maybe he’s a jerk. Maybe he’s been a terrible dad, and he doesn’t have a sense of duty towards his child. I don’t know him at all, obviously.

The law isn’t always fair. I don’t always like it. There’s not much I can do about it, and I know that’s frustrating, especially if it’s (as it often seems to be) the one thing that you really want to accomplish.

It’s a good idea to talk to an attorney, to get an idea of what the law will and won’t allow, and, if possible, figure out steps to move things forward.

It may be that you can work on your husband/child’s father in mediation, and may be able to get an agreement in place. Maybe you want an attorney to help you work on a proposed agreement. Once you do get an agreement, it’ll be easy to present it to the court or have it entered as a consent order between the parties. And maybe that’s the route you want to go.

Of course, we can’t file petitions without legal basis; the petition would just be dismissed anyway, and we would have wasted your resources.

For more information, or to discuss your particular situation with an attorney, give our office a call at 757-425-5200.