Guide to Child Support in Virginia
Child support cases in Virginia range from very simple matters involving routine application of the Virginia child support guidelines, to very complex cases involving the imputation of income to a party who is voluntarily unemployed or underemployed. Whether you are the payor or payee of child support, the following Guide to Child Support in Virginia covers all the essential information you need to know.
Child Support Guidelines
Virginia Code § 20-108.2 establishes the guidelines which apply in all child support proceedings in Virginia. At the heart of these guidelines is a mathematical formula, which takes into account each parent’s income, the support by either parent of “other children” (such as by prior marriages), day care expenses and health care costs. The guidelines use these factors to calculate a monthly basic child support obligation to be paid by the non-custodial parent.
§ 20-108.2 establishes a “rebuttable presumption” that the child support amount which would result from the application of the guidelines “is the correct amount of child support to be awarded.” In rare cases, the court may “deviate” from the guidelines, and order an amount of child support different from that established under the guidelines. To do so, the judge must rebut the presumption in favor of the guidelines, by making written findings “that the application of the guidelines would be unjust or inappropriate” in the particular case.
Virginia actually has different child support guidelines for three different types of custodial arrangements: sole, split and shared custody.
Sole Custody Guidelines. The sole custody guidelines apply where the children live primarily with one parent. Somewhat confusingly, that parent may or may not have “sole custody” of the children. In many cases, the parties share joint legal custody, with one parent having primary physical custody, but the “sole custody” child support guidelines apply.
Shared Custody Guidelines. The shared custody guidelines are used in many (although not all) cases where one parent has the child for more than 90 days per year. Calculation of child support under these guidelines can often be much more complicated than a simple calculation under the sole child support guidelines. The bottom line is this: in cases where one parent has the child or children for more than 90 days per year, that parent may owe less in child support under the shared guidelines than the sole custody guidelines.
Split Custody Guidelines. Finally, the split custody guidelines are utilized when the parents have two or more children between them, and each parent is the primary custodian of at least one of their children.
For more information, see Choice of Guidelines in Virginia Child Support Cases.
What Virginia Counts as Income
For purposes of calculating child support, the Virginia guidelines take into account the gross monthly income of both parties. This is your income prior to taxes being taken out. Virginia has a very broad definition of what it counts as income. Virginia defines income as not limited to but including “salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits… unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.” It is important to note that the child support guidelines take into account all income, not just taxable income. This is especially relevant for military servicemembers, as Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) are not taxable but are included as income for purposes of calculating child support.
Voluntary Reduction of Income
If a parent voluntarily leaves a higher paying position to take a lesser paying job, then the court can still calculate support based on that parent’s higher income at the former job. In this case, the court would say the parent as “voluntarily underemployed.” If a parent simply quits his or her job, or is fired as a result of misconduct, then the court will say that parent is “voluntarily unemployed,” and continue to calculate child support based on the income from that job. For more information, see Voluntary Underemployment In Virginia Support Cases.
When Child Support Should Begin
Child support is paid by the non-custodial parent to the custodial parent. That is to say that the parent who does not live with the child will pay support to the parent who does live with the child. Although a court order is the best indicator of when support is due, the non-custodial parent should always provide some financial support for his or her children. Keep in mind that if a party files for child support with the court, any award that is made will be retroactive to the date the petition was filed. That is, if no support is paid between the time petitions are filed for child support and the date child support is awarded by a court, then an arrearage will result.
Denial of Visitation
Non-custodial parents often ask, “do I still have to pay child support if the custodial parent is denying me visitation with the child?” The answer is yes. Child support is a separate issue from visitation with a child. A custodial parent should never use visitation with a parent as leverage to obtain more child support just as a non-custodial parent should never withhold child support to gain more visitation. The appropriate course of action if visitation is being denied or support is not being paid is to file petitions for either visitation or child support with the court.
Modification of Child Support
The amount of child support ordered by the judge may be increased or decreased based on a “material change of circumstances.” If circumstances—such as your income or the other parent’s income—change, you should check with an attorney to determine whether you should petition the court for an increase or decrease (as appropriate) of the child support amount. For more information, see Child Support Modification in Virginia.
Termination of Child Support
Child support ends upon emancipation of a child. This occurs when a child reaches the age of 18, enters into a valid marriage, is on active duty with any of the armed forces, or has willingly lived separate and apart from their parents or guardian with the parents’ consent and is capable of supporting themselves. Child support will continue for a child who is over the age of 18 if they are a full time high school student, not self supporting and living in the home of the parent seeking or receiving child support.
Statute of Limitations
The Virginia Supreme Court has held that each child support payment is subject to a 20-year statute of limitations from the date that it is due. For more information, see What is the Statute of Limitations on Child Support in Virginia?
There are several ways to collect unpaid child support in Virginia. Payees of child support can take action either in the court in which the child support order was entered or by using the Department of Child Support Enforcement (DCSE). For more information, see Six Ways To Enforce A Child Support Order in Virginia
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