Raising and Lowering Virginia Child Support
As far as things go, child support is one of the easiest issues we deal with in our practice. In a lot of ways, it’s so cut and dry that we don’t spend a lot of time talking about it. That doesn’t mean, though, that you’re not wondering about it—after all, it’s all new to you, and you’re probably wondering how things work, and what you can expect to happen in your divorce or your custody case as far as child support is concerned. Am I right? Good—well, that’s why I’m writing to you today. We’re going to talk about what to expect when it comes to Virginia child support, as well as how it works when you’re raising and lowering child support.
How is child support calculated?
Child support is calculated based on a formula. It takes into account the incomes of both parties as well as certain other unique facts – like whether there is any child support paid for children from other relationships, how much work related childcare costs, and the healthcare expenses of the children.
The guideline is binding. There’s not a lot of wiggle room. Though you can agree to an upward deviation, if you choose, there’s not a lot he can do to avoid child support being awarded at that minimal level.
Child support isn’t optional. It’s the law, and your child’s father will be required to pay it, whether he likes it or not.
What if he’s contesting paternity?
That happens sometimes. The good news is that child support can be awarded retroactively from the date you file your petition for child support, so even if you’re waiting on paternity test results, once they prove that he’s the father, he’ll likely have to pay child support all the way back to when you filed. Sure, he can slow things down this way—but he’ll start out with an arrearage!
His paternity suit may make it take longer before your child support award is established, but that doesn’t mean you give up on all the time it took from when you filed until your paternity results come back.
How can I get child support established?
Child support can be awarded in a number of ways. If your case is also part of a divorce, it can be determined either by agreement between the parties, or ordered by the judge at the circuit court level.
If your divorce is contested, you won’t have to wait until the end of your case to have child support awarded, either. After you file for divorce, you can schedule a pendente lite hearing (that’s Latin for “while the litigation is pending”), and get temporary child support (and custody, for that matter) determined at that time. It’s temporary, though, so whatever permanent support is awarded would happen later on – either when you sign your separation agreement, or when the judge enters a final order in your case.
You can also petition the juvenile court for child support. If you don’t already have a divorce case pending, this might be the quickest and easiest way to get it established. You can go down to the courthouse and file petitions; it’s pretty quick and easy, and oftentimes the clerks will actually help you (they’re not supposed to give legal advice, but they know a LOT about filling out those forms). It’s a pretty straightforward process; usually you’ll have an initial appearance, and then the matter will be set for a formal hearing.
The only catch is that if he files a divorce in circuit court, the juvenile court will be divested of jurisdiction and you’ll have to petition the circuit court for child support.
What happens if I have my child support case and I get a bad result?
Anything at the juvenile court level is appealable to circuit court within 10 days. You’ll get a brand new trial de novo, and none of the old evidence comes up. You can appeal for any reason at all—but you will have to follow the lower court’s decision in the meantime.
If you lose at the circuit court level, you can appeal to the Virginia Court of Appeals, but only if there’s a mistake of law (as opposed to a mistake of fact) in your case.
The good news, though, regardless of whether you’re in juvenile or circuit court, child support is always modifiable based on a material change in circumstances. If you have a material change (which will be pretty broadly construed), you can petition the court for raising and lowering child support, depending on your situation. It’s easy! (Custody and visitation are also modifiable. Why? Because the court’s main concern is the best interests of the child, and that’s something that changes with your changing circumstances.)
Does the amount of child support I’ll receive depend on how much time I have with the child?
Well, sort of! It depends on the type of custody you have.
In a primary physical custody scenario, the non custodial parent (the parent who has the child less) has 89 or fewer days (defined, of course, as a 24 hour period) with the child in a year. When you have primary physical custody, child support is at its maximum—and it doesn’t matter whether the non custodial parent is a total deadbeat who never sees the child or whether he takes the full 89 days with the child over the course of the year.
With shared physical custody, though, it DOES matter how much time each of you spends with the child. Under shared physical custody, child support is based on a sliding scale; the more time the non custodial parent has with the child, the less he pays in support.
Is it possible that I could have to pay him child support?
Yes. It depends on your incomes, your custodial arrangement, and, if you have shared physical custody, how much time you have with the child.
If you earn dramatically more, though, even if you have primary physical custody, it’s possible that you could have to pay him support. Most of the time, though, the custodial parent (the parent who has the child more) receives child support.
As far as raising and lowering child support—that’s always possible! Again, it’s based on a material change in circumstances, so, at any time (provided, of course that there’s a material change) either of you could petition the court to re-determine anything relating to the children—child support, custody, or visitation.
For more information about child support, including raising and lowering child support, give our office a call at (757) 425-5200. Our family law attorneys are here to help you.