Child Support

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Child support is, in many ways, one of the easier aspects of the work that we do here, in the sense that it is calculated according to a formula. The formula is binding on the courts so, although it is possible that a judge could, based on the best interests of the child, deviate either upwards or downwards, it’s not often done.

In most cases, child support is established in each case according to the formula. Though, of course, that doesn’t mean that the child support discussion doesn’t go over a bit like a lead balloon.

Child support makes parents responsible for providing financial support for their children until they reach adulthood. Both parents “pay” child support, but that doesn’t mean that they both pay each other their portion. Usually, only one parent pays their portion to the other parent, though it is possible that neither parent would be responsible for paying the other anything. (This would likely be in a scenario where the parties’ incomes were very near equal, and they enjoyed very near equal parenting time as well.)

The cost of having custody is reflected here and counts towards your pro rata portion of the child support obligation.

In Virginia, child support continues until the child turns 19 or graduates high school, whichever occurs first.

Let’s talk a little bit more about how child support is calculated in Virginia.

How is child support calculated in Virginia?

The child support calculation is pretty simple. It takes into account each party’s income (which includes spousal support, if you’re receiving it), the health insurance expenses for the children only, and the amount paid in work related child care. Other factors – like support paid for another child – can come into play, too, if relevant in your case.

Your combined income – that is, yours plus your child’s father’s – creates a “guideline support figure”. You and your child’s father are both responsible for making sure that the child receives the benefit of this guideline support figure. The guideline support figure is established by statute, and you can see it here.

Where does the guideline support figure come from? It’s made up. The legislature decided that, based on that level of combined income, this is the amount that the child needs to have his or her basic needs met. Obviously, the amount increases based on the number of children you share with your child’s father.

To determine what YOUR guideline support figure is, you combine your income, and then move to the right; you’ll see numbers one, two, three, and so on. Those relate to the number of children you have with your child’s father. (If you have two children with two different fathers, two different support guidelines will apply.) So you move to the right, and then down the list until you reach the number that matches your combined monthly income to see your guideline support figure.

Under a primary physical custodial scenario, you split it pro rata based on your incomes (and then it’s offset for health insurance and childcare costs) – meaning that if he earns 60% of the income, he’ll pay roughly 60% of that guideline figure. The other 40% is more or less invisible, because you don’t pay it to yourself – but you “pay” it (in all likelihood, you pay far more – but that’s another discussion for another day) as you care for the child during the course of the month.

In a shared physical custody scenario, the same formula is applied – but the guideline figure is further offset based on how many days each parent spends with the child. It’s a little more difficult to calculate (because we have to know the number of days – which may not be something you yourself even know at the beginning of your case), but it’s based on the same general numbers.

In a sense, it’s a complex weighing of factors – but predominantly each parent’s income and each parent’s amount of parenting time – that impact whether and how much child support will be awarded. A higher earning spouse, whether they are primary physical custodians, will have a greater responsibility towards the guideline support figure. But if the lesser earning spouse shares little to no parenting time, he could still have to pay child support to the higher earning parent.

A lesser earning spouse who takes on more of the parenting time will also likely receive child support from the other parent. And, again, it is possible that no support would be awarded (which, to reiterate, does NOT mean that the parents don’t have financial child support obligations to the child – they do!). You’re “paying” child support even if you don’t pay the other parent for your child’s support.

How do I get child support established?

There are a couple of different ways to get child support established.

One of the most common options is to reach an agreement – often, as part of a separation agreement (in preparation for an uncontested no fault divorce), but also sometimes as part of custody agreement (which would be appropriate in a case where the child’s parents never married or in a case where custody and visitation is modified post-divorce).

In an agreement, you can agree to child support by the guidelines (which your attorney can run for you, if you’re not sure what that figure is), or even to an upward or downward deviation.

Keep in mind, though, that child support is the law. You don’t have to agree to a downward deviation just because he doesn’t like the child support figure or because he “can’t” afford it; in fact, we would argue that you absolutely should not. It’s not about whether you can afford it without him, it’s about the benefit to the child. Keep in mind that things like college expenses aren’t covered under child support in Virginia; there’s no extension past the age of 19 or high school graduation (whichever occurs first). If you truly feel you don’t “need” the money each month, save it or invest it for the child’s benefit later!

Alternatively, you could petition in the juvenile court for child support (and/or custody and visitation as well). You might find yourself in juvenile court because you were never married to your child’s other parent (divorce cases, on the other hand, are handled in circuit court) and you’re getting an initial determination of child support, or later on for subsequent modification of child support.

Circuit court is an option as well. If you were married to your child’s other parent, you could have child support determined as part of the divorce action. If you started out in juvenile court, either as an initial determination or as a modification, you might also find yourself in circuit court on an appeal.

Either way, in juvenile or circuit court, child support would be established by an order. An agreement, too, would be entered with the court formally, and then it takes on the authority of an actual order, the same as anything that the judge would have issued in court. As such, after that point, it is enforceable in the event either party doesn’t comply with the order.

Can I get back child support?

Yes, sometimes! Usually, you can get child support dating back to the date that you filed your petition with the court. So, even if it takes six months to get a hearing, that doesn’t mean that you’re SOL for those six months. The court can – if you ask – order that child support start as of the date you filed.

So, what does that mean? It means your child’s father will start with an arrearage. Usually, he won’t have to pay all that money up front (though he could, if he had it!); he’ll have to pay a certain amount extra each month until the arrearage is covered.

Most of the time, when we negotiate agreements, there’s not credit for back child support, but that is also possible if the two of you can agree on it.

Can child support be changed later?

Yes, of course! We’ve touched on this a bit in the paragraphs above, but child support (just like custody and visitation) can be modified based on a material change in circumstances. The way the law sees it, the child is entitled to the best of the parents – so, as they earn more or less over time, the child support obligation will be changed to reflect that.

After an initial determination is made (whether in juvenile or circuit court), the juvenile court is where you would file for a modification. If the result is bad, you can always appeal to the circuit court, too, for review.

If it’s established by formula, isn’t child support pretty easy to determine?

In some ways, it’s easy to say that child support is not worth litigating, because child support is established by formula. You plug the numbers in, and it doesn’t matter who does it (your attorney, his attorney, or the judge), and the guideline support figure is the same.

In other ways, though, child support is litigated all the time, especially because savvy dads are often aware that the amount of time they spend coparenting directly correlates to how much they’ll pay in support. Under a primary physical custody arrangement, for example, child support is at its maximum, and it doesn’t matter whether dad spends no time with the child at all or takes up to the entire total 89 possible days.

In a shared physical custody situation, though, things get a little wonky. Instead of receiving the maximum amount of support by default, child support under a shared physical custodial arrangement is based on a sliding scale. The paying parent pays less in support the more days he spends with the child in a calendar year. So what happens? You guessed it – more dads fight for more time, which in turn lowers their child support obligation.

The theory here is that, if the non-custodial parent (the parent who has the children less) spends more time with the child, he shares a greater responsibility for the children already – in terms of living in a home that accommodates the children, the food he provides, the water used, the clothes and toys and things he must provide, and so on.

Health insurance costs

Health insurance is one of the things that factors into a child support calculation. We attribute it – at least, the amount that is paid for the child only to have health insurance – in the formula to the parent who pays for it.

Normally, one parent is court ordered to provide health insurance, which, in turn, lowers their support obligation. It’s not a dollar for dollar deduction (meaning, if it costs $100 per month, it doesn’t lower the support $100); it’s also done in such a way to make each parent responsible for their own pro rata share.

Usually, agreements include some kind of mitigating language – that, for as long as health insurance is available at a reasonable cost, for example – in the health insurance provisions. But regardless, like anything else related to custody, visitation, and support, it’s modifiable. If the parent previously offering health insurance loses their job (and, by extension, their health insurance coverage), things can change.

Work-related childcare costs

Work-related childcare costs are a biggie. If your children are young enough to need full time care, you know that it’s not inexpensive.

In fact, the high cost of childcare is often one of the biggest reasons that people cite when they justify one spouse (usually, though not always, the mother) not working. Why work, they say, when what she earns can barely cover childcare costs?

Though that may be a reasonable argument in a case where the parties are married, it often breaks down in a case where mom and dad have broken up. Don’t assume that, just because your earnings are low relative to your childcare needs, that it won’t be worthwhile for you to go back to work, or to start to work more. Because of the way the child support formula makes both parents responsible for the childcare costs, it’s often far more lucrative for you to work than not. (Not to mention the other tangential benefits of working – like health insurance, 401(k), and so on!)

It’s ALWAYS a good idea to run the guidelines, just to see what your situation could look like at different income points.

The court can’t make you start working (though you should probably read the next section on imputation of income), but it’s definitely worth considering. After all, there are benefits far beyond the actual income you earn – and, in some cases, it can even increase the child support you receive. (Because, remember – you use the COMBINED monthly income to get that guideline support figure, so if your income goes up, so too does the guideline, and he still pays his pro rata share of that figure.)

Also note that the statute specifically provides for work related childcare, not childcare you might need for any other reason, like going back to school.

If I was working before, can the court force me to keep working?

It’s also worth considering whether the court might impute income to you – meaning, basically, making you responsible for earning a certain amount regardless of whether you choose to do it or not.

We see this most often in spousal support cases, but it can happen in child support cases, too. You’re not going to be able to go from earning a living to staying at home (though, in all likelihood, just receiving child support would not give you the financial freedom to accomplish this), and neither is he. You’ll probably be more or less expected to maintain the same (or a similar) standard of living to what you had prior to your breakup or divorce.

Though the court can’t FORCE you to work (just like it can’t force you to go back to work), the court could hold you responsible for earning income at a certain level, especially if you’ve done so before. “Voluntary underemployment” is what we call it when someone who was previously working and earning a living later decides not to.

If you’re going to go back to school, imputation is definitely something you should be aware of – and it’s worth discussing the possible ramifications with your attorney. In most of these cases we’re comparing the status quo (basically, the situation as it existed PRIOR to the break up or divorce) with the possible changes. If the status quo had you earning less, or working part time, or attending school, the court will probably look less critically on that choice – since it was a choice that you likely made together and both supported.

When your LATER choice will increase the burden on the other parent, though, is when the court starts to look at things more critically. If you were working, but now you want to go back to school, and it means that the other parent will have to pay more each month in child support – well, it becomes a problem, and one the court may have to adjudicate. It’s possible that, even while you’re in school, income could be imputed to you. Is it likely? It’s hard to say.

The court is sometimes (remember – different courts, different judges, different philosophies abound, so there’s no black and white rules here) loathe to let one parent’s choices cost the other parent more money. A layoff is one thing; a decision to stay at home or to go back to school for a period of time is another. And even in the case of a layoff, it’s possible that there’d be a lot of digging into an employment record!

These cases aren’t the same across the board. In fact, we’d probably argue that no two cases are the same, so it’s not going to work to look at what happened to your best friend’s cousin or your sister’s coworker, or some other random case you read about on the internet. These are highly fact-specific and nuanced, so if you have a bunch of questions about your options and choices, it’s a good idea to talk to one of our attorneys.

Support for other children

If you or your child’s father have children from another relationship and there’s an already-existing support order in place, that amount of support is going to be factored into the formula.

It may not seem fair, but another support order does reduce the other parent’s income, and impacts his ability to pay support to his other children.

It’s not something we see happen all the time, but it does impact the child support calculation and it’s something you should be aware of so that you’re not surprised later on.

What about medical expenses?

Medical expenses are not included in the child support calculation. Only the cost of health insurance coverage is included.

So, what do you do? Well, according to the statute, any “unreimbursed medical expenses”, meaning anything that you have additional expenses to cover that aren’t covered by the insurance itself, are split by the parties pro rata. That includes copayments!

Most agreements specifically lay out the kind of medical care that’s covered; if you go to court, it’s not likely that the judge will put that much detail into it. But, generally speaking, the court will find that the parents need to share the costs of the medical care that the child needs to promote his or her best interests – so it can include things like glasses, hearing aids, orthodontics, and therapy or counseling.

It’s a misconception that these expenses are split 50/50. They could be, of course, if your incomes are roughly equal – because 50% would be your pro rata share, in that case. But the law says that they’re split pro rata (again, that means proportionally based on your incomes), not that they’re split 50/50! So, don’t sign an agreement that says you’ll split these expenses 50/50 if you don’t earn 50% of the income! These costs can add up dramatically.

For a child with truly special needs (not just a kid who needs braces or broke an arm), there may also be room for an argument to deviate upwards in terms of the child support obligation. This is going to be case specific, though, and you’ll want to talk to an attorney about your options.

What about my children’s extracurricular activities?

Technically speaking, extracurricular activities are supposed to be included in the child support obligation.

There’s no specific line item for travel volleyball or piano lessons or overnight summer camps.

You could strike an agreement about how to pay for these items, or ask the judge for a deviation to reflect specific elevated expenses, but there are no guarantees.

What about college expenses?

Child support extends until the child turns 19 or graduates from high school, whichever occurs first. There is no requirement in Virginia that parents pay for college for their adult children.

If you’re able to get an agreement in place that specifies how college expenses should be paid, the court can enforce your agreement – but that’s the only way to get college expenses covered.

Even so, the advisability of entering into an agreement with regard to college expenses is questionable. After all, it’s hard to say what financial position either of you will be in by the time your children go to college, and it’s difficult now to agree exactly what you’ll do in those changed circumstances. We often advise our clients against provisions like this in the event that they can be used to their detriment later on – which it is impossible to know at the time the agreement is being negotiated.

It’s one thing to do something for your children because you are able and you want to, and it’s another thing entirely to be contractually obligated to do so, especially if your financial circumstances are so changed that following the agreement would put you in a bind financially.

We can put conditions into the agreement to help mitigate the problems associated with these types of provisions, but also have to be careful that the provisions don’t make the entire clause ineffectual. Sometimes, we’ll say things like that the cost of tuition is limited to the cost of tuition at a certain in-state public school (say, the University of Virginia), but it’s entirely up to you and what you and your child’s father are willing to agree to do.

What if my child is over the age of 19, but is disabled and can’t support himself or herself?

Special needs children are different in many ways, but one of the biggest ways is that some disabilities mean that the child won’t be able to live independently or support himself, even after he turns 19 or graduates from high school.

Child support for disabled or special needs adult children

Technically speaking, of course, child support is for children. A child is not a child once he or she has turned 18. The law provides a bit of a grace period in extending child support until 19 or high school graduation to reflect the actual reality of many of our lives, but usually child support is not extended past that point.

It is possible that, with a special needs child, child support could be extended past the age of 18. You’d need to have a child support order already entered, prior to the child’s 18th birthday. (If you don’t have one entered, then you have a legal adult and there’s no way to enter a new child support order.) If your child’s father isn’t agreeable, you may have to have a hearing where you bring in doctors and specialists who testify about the extent of your child’s disability and what it means for him long-term. Ultimately, it would be up to the judge to decide whether to extend child support.

This, though, is a good example of a problem that has more than one solution. Child support isn’t the only way to have money coming in to supplement your disabled or special needs child’s ongoing care.

Spousal support: because you’re your adult disabled or special needs child’s full or part time caregiver

For one thing, the needs of the child – and the already-established routines of the family for meeting those needs – are considered by the court in awards of spousal support. If you’re unable to work because of the demands of caring for your child (especially if this was already accepted by your ex spouse prior to the divorce), the court would consider that in a spousal support award.

It may be that you could receive more spousal support or receive spousal support for longer because of your child’s disability. It’s certainly one of the factors, and it’s a mitigating set of circumstances that impacts your ability to work and earn a real living. Like many things, this is case and fact specific, so you’ll want to talk to an attorney directly about your unique situation and whether spousal support might be part of an ongoing solution to the problems you’re facing.

Social security disability

Of course, another way to get support for your adult disabled child is by going through the social security disability channels. In fact, though there’s certainly an argument that the child’s father should bear some continuing responsibility for the needs of your adult disabled or special needs child, this is technically the proper channel for this kind of situation.

Some judges don’t want to extend child support for this reason – because it’s not the ideal channel for extending support for an adult disabled or special needs child. Technically, the obligation of the parents ceases by the time the child reaches adulthood.

It can happen, but you should also be aware of the other avenues available to you for ensuring that you and your adult disabled or special needs child gets what you need to survive (and thrive)!

What if my child’s father wants more time to lower his child support obligation, but he doesn’t exercise the time he has?

It’s always tricky!

In general, especially with the new custody laws, we’ve found that judges like to at least give dads – even previously uninvolved, disinterested dads – the opportunity to parent.

After all, it’s one thing when it’s one big happy family, and it’s another thing when the parents separate and each starts spending time with the children separately. Many dads DO step up at this point, and take on an active role that they didn’t before. To the court’s perspective, this should be promoted and encouraged because it’s in the best interests of the children.

It becomes different, after some time has passed, when dad has had the opportunity but has not taken it. To the moms who find themselves in this position, all we can say is document, document, document. Count the days yourself.

If we’re being cynical, there is a selfish motive for pushing for more time, even if dad doesn’t want it or can’t actually exercise it. Having 90 or more days puts dad in shared custody territory, and it lowers his child support obligation. To the extent that he’s pushing for more time just to get into shared custody territory and not because of his desire to spend more time with his children, all we can do is look at what is actually happening and show the court that he’s not actually taking his 90 days.

The court can’t force him to come pick up the kids; litigation does not, in fact, make people better parents! But you can petition the court for a change in custody if he routinely isn’t exercising his time. After all, that’s NOT in the best interests of the children. If you received proper credit for primary physical custody, which is what you’ve actually been doing, then you’d receive more in child support – which would improve their quality of life.

Sure, dad’s presence may improve their quality of life more (and, by extension, would cause him to spend more money taking care of the children during the time that they were in his care), but if he’s not actually exercising that time, there’s no benefit at all.

All that to say – document, document, document!

If he’s not paying child support, can I withhold visitation?

This one’s easy: no.

There is not a link between child support and his parenting time, though I can understand why, in your frustration, you’d see it that way.

As far as the court is concerned, though, this is TWO wrongs, rather than just one. If you’re going to take him to court for the unpaid child support, you don’t want to also have done something wrong that needs to be addressed. Let HIM be the bad guy. As for you, it’s best if you’re beyond reproach. It makes it easier for you to get what you want the way that you want, and also easier to make arguments for sweet little extras, like attorney’s fees, for your time and trouble.

Do not withhold visitation because he’s not paying child support!

What do I do if he doesn’t pay child support?

If child support has been ordered and he’s not paying it, you can take him to court by filing a show cause.

Child support is the law, so he really can’t get away with it forever. The court will order that he pay it back.

Typically, that doesn’t mean that he’ll pay you a lump sum. In general, people don’t have large sums of money lying around, and the court is aware of that. Usually, arrearages are calculated, and then paid off a little bit at a time (say, an extra $200 a month) until it’s paid off.

You may also be able to get attorney’s fees if you have to take him to court to enforce your child support order or agreement.

What if I’m remarried? If my current husband earns an income, will that decrease my child support?

No. Child support is only about what the child’s parent’s earn. Your new husband (or your child’s father’s new wife) does not have any responsibility to contribute to the child support you receive, or to help your ex pay less.

That’s true even if your spouse (or his!) make voluntary expenditures for the child. Your husband could help support the child in the sense that he contributes to the household bills, or even outright pay for some luxury item or experience, but he does so because he wants to – there is no child support obligation.

It doesn’t matter how much or how little your new husband earns, or how much actual or perceived benefit you or your child derive from it. Child support comes down to the incomes of the child’s parents, and that’s it.

In some ways, as you can tell, child support is easy. In others, it is incredibly complicated. Because there’s always the possibility of litigation, especially over the amount of parenting time you have, it’s a great idea to talk to an attorney early on about your case and figure out how you plan to proceed.