It’s a common story. Pursuant to your Virginia divorce decree, you are ordered to pay your ex-spouse $1,200/month in child support for your three children. A few years later, your oldest child graduates from high school and goes off to college. So what do you do? You figure $1,200/month divided by three kids = $400 per kid, so you’ll reduce your monthly payments to your your ex-spouse to just $800 for the two remaining eligible kids. Right?
Wrong. And in fact, you can get yourself in a lot of trouble this way. You cannot unilaterally change your child support amount without the court’s involvement. Your spouse can later take you to court and you will almost certainly be held accountable for that extra $400/month that you stopped paying.
How could that be, if one of your children is no longer eligible for child support? It is true that the emancipation of a child can constitute a material change in circumstances that warrants a change in your child support obligation. However, in Virginia there is no formula by which your obligation automatically changes under a standard child support order, and you remain bound to pay the specific amount stated in your order until a new court order states a different amount. You must petition the court for a modification of your child support obligation, based on the present circumstances that exist now that your oldest child has become emancipated.
If the court grants your petition and modifies child support, when will the new obligation begin? Pursuant to Virginia Code Section 20-108, “[n]o support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for modification in any court, but only from the date notice of such petition has been given to the responding party.” This means that you have to put the court, and your ex-spouse, on notice that you are seeking a modification in child support for a modification to be recognized by the court. If you unilaterally reduce the amount you pay in child support, you will likely face a hefty arrearage, along with the many other negative consequences that can accompany a failure to pay child support.
What if your ex-spouse agreed in writing to the reduction? That would help show that you were not willfully disregarding the court order, but you would still be legally obligated to pay the support amount stated in that order, and subject to an order of arrearages for not doing so. In other words, it is not safe to reduce your support payments based simply on your ex-spouse’s agreement to the lower amount—you should instead submit for the court’s entry a new “Consent Order,” signed by both parties, reflecting the new child support amount.
For help with a reduction in child support based upon one child’s emancipation, consult with an experienced family law attorney. The child support lawyers at Livesay & Myers, P.C. have years of experience with child support cases in Fairfax, Loudoun, Prince William, Manassas, Alexandria, Arlington, Fredericksburg, Stafford, Spotsylvania and all across Northern Virginia. Contact us to schedule a consultation today.