Imputation of income in a Virginia child custody case
I guess it was bound to happen sooner or later, but the other day I finally had a consultation where a woman yelled at me. I’ve been told that it happens, but I guess I never really thought it would happen to me. I can’t say I blame the woman; I didn’t have an awesome answer to give her. Sometimes, the law just…isn’t what anybody wants to hear. In this case, in particular, it was not at all what the woman sitting across the desk from me wanted or expected to hear.
She came to see me on a child support case. She has two children with her child’s father, and they were never married. Her child’s father also has two other children from another relationship, and he is supporting them, too.
Child support in Virginia is based on a formula. It takes into account a number of things—like the income of both parties, the number of children from other relationships being supported by one or both parties, how much health insurance for the children costs, and how much is being spent on work related child care. It’s a formula, like I said, and when you enter all the information into the software, child support is calculated.
There are a couple of different formulas that can be applied, too, depending on how much time the non custodial parent (the parent who has the children less) spends with the children. In a primary physical custodial relationship (where the non custodial parent has 89 or fewer days with the child in a calendar year), child support is at its peak whether dad (assuming he’s the non custodial parent) spends 0 or 89 days with the children. In a shared physical custodial relationship, on the other hand, (where the non custodial parent has 90 or more days with the child in a calendar year), child support is less or more depending on how much time the non custodial parent has with the child. If dad has 90 days, he’ll pay less in support than if he had a full 182.5 (half of the year), and he’ll pay more than if he had 89 or fewer and fell into primary physical custody territory.
The child support formula is binding on our courts. Whether I calculate it, your child’s father’s attorney calculates it, or the judge calculates it, the number will pop out the same. And, I have to say, it’s not an overly generous number. I can’t really help that. In fact, there are a lot of things about all of this that I can’t help—from what your child’s father makes to how many other children he’s supporting and certainly the state of the law in Virginia these days.
What happens when you file a child support petition with the juvenile court?
Child support can be awarded in a number of different ways, but many people try to get it awarded by filing a petition for child support (sometimes also accompanied by petitions for custody and visitation) in the juvenile court.
It’s a pretty easy process; you just go to court, file a petition for child support, have it served on the other party, and return on the date indicated. Sometimes, child support will be determined at the first date provided; other times, at the first date, a hearing will be set where child support will be formally determined.
A child support hearing usually isn’t a very big deal. There’s not really much to fight about; if you’ve got a child together, support will be calculated and awarded. Usually, the judge will want to see some evidence of your incomes—whether you provide W2s, paystubs, or even a copy of a tax return. He (or she) will then plug the numbers in, and order child support in the amount that pops up.
How else can I get child support awarded?
Child support can also be determined by agreement of the parties, or as part of a currently pending divorce.
If you and your child’s father agree (in writing) to a certain amount of child support, that will be valid. Likewise, if you’re going through a divorce, you may agree to a certain amount of child support in your separation agreement, or the judge could award it at the circuit court level if your case is litigated.
It doesn’t really matter how child support is determined; we’re all using the same formula.
What if child support needs to be changed?
Child support is always going to be modifiable based on a material change in circumstances. Whether you’ve gotten a raise, got fired, moved, had a new baby, gotten remarried, or whatever—it can all constitute a material change in circumstances. If you or your child’s father petition the court to recalculate child support (as long as you don’t try to petition again as soon as your previous order was entered), the court will hear it.
If you’ve gotten a promotion, child support will likely be raised; if you (or your husband) have been fired, child support will likely be lowered.
The general rule is that you can’t petition the court until about 6 months have passed since your last order was entered, but it is definitely a possibility that you’ll be in and out of court relatively often (especially if your child’s father is litigious) until your child reaches the age of 18.
Can I get MORE child support?
Now we’re getting to the gist of why the woman I met with was so upset with me. Her child’s father had recently quit his third job in as many months, and was petitioning (again) to have child support lowered. There were some other issues, too, but mostly she was angry that he could quit a job and then pay less in support.
It didn’t seem fair to her. I agree—it doesn’t seem fair to me, either. But I tried to explain to her that child support really is just a calculation; if he’s earning less, the formula will require him to pay less.
If she wants more (she didn’t want more, really, she just didn’t want it lowered) than the formula would give her, she had a couple of options. She could either argue that the judge could impute income to him, or argue that she deserves a deviation.
Imputation of income
We’ve talked about imputation of income before, but mostly when it comes to spousal support cases. In a spousal support case, a husband can’t say, “Screw you! I’m going to go flip burgers just so you don’t receive a penny of support from me!” In that kind of case, if he quits a high paying job, the judge could order that the income he was earning before he quit could be imputed to him, making him responsible for paying support based on that amount, rather than whatever he’d earn flipping burgers.
Income can be imputed in a child support case, too.
Likewise, you could make an argument that said, basically, “I know what the child support formula is, but for this reason _______________, I should receive more child support.”
Either way, whether you impute income or request a deviation, you’re in for a much more complicated case. We’re talking witnesses (like his boss, so that we can prove that he quit instead of was fired, for example), exhibits, and evidence. It makes the case much more complicated, and much more involved.
A parent can go to jail for failing to pay child support, so a judge will, generally, be careful about the amount of support he orders a parent to pay. Besides that, you don’t really want him going to jail, either—because then he really can’t pay support!
I haven’t seen very many cases where either of these arguments were successful. It happens, but rarely, and usually for very good cause. I haven’t seen one exactly like what the woman I met with was talking about; she just wanted him to be forced to keep the child support at the same level, even if he was unemployed.
When I’ve seen it happen, it’s for pretty undisputable reasons. I’ve seen it happen in a case where a child was severely and profoundly disabled, and needed special equipment, medication, and assistance that was far above and beyond the typical unreimbursed medical expenses. There, the judge awarded a deviation—and, even then, it wasn’t that much.
I felt awful all day about the women I spoke with, and I wished I had better news for her. Still, though I’d go to court and argue until I was blue in the face about why her children deserved a deviation, I also felt like I had to give her accurate information, based on my experience and the law of Virginia. It’s hard to encourage someone to pursue a case, even though you know it’s the right thing, when you know the likelihood of success is low. And she—a mother—obviously has other important expenses.
Child support is the law, but getting more child support can be tricky. For more information or to schedule an appointment one on one with one of our licensed and experienced Virginia divorce attorneys to discuss your child support case, give our office a call at (757) 425-5200.