Divorce and child custody proceedings are often contentious, time consuming and expensive. It is understandable that parties to litigated divorce or child support cases would never want to see a courtroom again, or even think about having to reopen old wounds. The reality is, however, that parties who want to adjust child support need to follow certain steps and procedures, because the consequences for not doing so can be severe.
Pursuant to Virginia Code § 20-108, Virginia courts have the authority to revise and alter prior orders concerning the custody, care and maintenance of a child or children and make new orders, “as the circumstances of the parents and benefit of the children may require.” The amount of child support ordered by a judge may be increased or decreased at any time based on a “material change of circumstances.”
Parties seeking a modification of a child support order in Virginia should follow these steps:
- Consult a Lawyer. Before any formal or informal negotiations of a child support modification take place, consult a lawyer to find out more about the legal issues at play and how the facts of your individual case are impacted by the previous court order in your case.
- Review Prior Order. Be sure to review the previous order in your case carefully with your attorney, regardless of whether the order was agreed to by the parties or entered after a litigated case. Orders can often contain language which can set the guidelines for how a new support amount is to be calculated.
- Exchange Financial Information. It is often a good idea for the parties to exchange their financial information with each other to have a general idea about any changes in income or ability to pay child support. They will usually have to trade this information in the discovery process anyway, so doing it beforehand can save some time and money for everyone involved.
- Work Towards an Agreed-Upon Support Amount. Child support, more often than not, is set using the presumptive amount generated by the Virginia child support guidelines. There are times when courts can and do deviate, but in most cases the calculation of a new support amount will follow the guidelines. As a result, parties in modification cases should strongly consider coming to an agreement, with the assistance of their counsel, as to a new child support amount.
- Secure a New Court Order, Not Just a Verbal Agreement. Where a court has ordered child support, a verbal agreement as to a modification of support has no legal effect. Only a new court order can legally modify a court-ordered child support obligation. Payors of child support who forget this can find themselves facing very large arrearages down the road. For example: let’s say that Father is ordered to pay Mother $1,500 per month in child support. Some time later, after changes to the incomes of both parties, Father and Mother agree to reduce Father’s payments to $1,000 per month. However, neither of them wish to involve lawyers or the court—and so do not secure a new court order reflecting the lower child support amount. Years pass, with Father now paying only $1,000 per month. Then one day, Father finds himself back in court, being ordered to pay a large child support arrearage to Mother: the difference between the $1,500 per month he was ordered to pay and the $1,000 per month he had been paying for all those years. This might seem tremendously unfair to Father, but it is the law in Virginia.
If you have questions about the modification of child support, be sure to consult with an experienced family law attorney. The family lawyers at Livesay & Myers, P.C. have years of experience in child support modification cases across Northern Virginia. Contact us to schedule a consultation today.