Child Support Retroactivity in Virginia
Most parents facing a separation or divorce understand the importance of determining a child support amount. In Virginia, child support is determined by the application of child support guidelines which consist of a formula that factors in (a) the gross incomes of both parents, (b) any support paid by either parent for children from another marriage or relationship, (c) day care expenses and (d) the cost of health insurance for the child.
The question of how much child support will be paid is clearly important—but what about the question of when it begins? And specifically, when the parties have gone a period of time without a child support order or written agreement in place, is support owed retroactively for that period?
Under Virginia Code §20-108.1, courts in Virginia are to determine child support “retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent… .” This means that although the parties may have been separated for a significant amount of time before anyone filed or any payments were made, the court only has the authority to order payment from the date the action was started. So, child support that should have been paid post-separation but pre-filing is effectively waived, which in many cases can deal a severe financial blow to the custodial parent.
The one situation in Virginia where the court does have the authority to order child support payments retroactive to before the filling date would be where the parties had executed a written child support agreement.
As a delay in filing equates to a delay in support, custodial parents without a written agreement in place should always file for child support upon separation to “start the clock” on the accrual of support. After filing, the parties can still work together to amicably reach an agreement on the matter, without the risk of the custodial parent forfeiting support in the event that an agreement cannot be reached.
It is also wise for a non-custodial parent to begin paying some amount of child support once a petition has been filed. As it usually takes several months for a child support matter to be heard and a determination to be made, failure to pay any sum of money can result in significant arrears when the court makes the award retroactive to the date of filing. A court finding of retroactive arrears usually means that an additional amount will be added on top of the monthly obligation until the arrears are paid in full. Child support paid after the date of filing but before the final hearing will be credited to the payor, which may effectively reduce the monthly obligation and place the paying parent in a better situation.
Livesay & Myers, P.C. has teams of experienced family lawyers in Fredericksburg, Fairfax, Leesburg and Manassas, Virginia. If you are facing a child support or other family law case in Northern Virginia, contact us to schedule a consultation today.