At the very root of child support legislation lies the fundamental right for a child to be supported by both of their parents. Under Virginia law, it is expected that both parents contribute to the support of their minor children. Despite this expectation, make no mistake that this can be an incredibly sensitive topic, both for parents who receive support and for those who pay it.
A paying parent may disagree with how they perceive the support is being spent and may even be unable to meet their financial obligation despite sincerely wanting to “do right” by their child(ren). A receiving parent may feel they are not getting enough financial help from the paying parent in supporting their child(ren). Both parties may disagree with the obligation resulting from the support calculation or feel that the other parent was dishonest in supplying their income information and/or other financial documents. Child support matters can be rife with conflict.
While there are certainly parents who mislead each other (and the Court) about their income or other financial circumstances, are money-grubbing, and/or try to exploit the “system,” most parents who find themselves dealing with child support issues have the pure intention of wanting to do what is best for their child(ren). A good child support attorney can help separate feelings from finances and assist with reaching a support obligation that is fair to both parties under the current laws.
Having a child support lawyer in your corner can help you to protect your finances and your children during child support litigation, but a basic understanding of how child support is determined is critical from the outset. Here, we’ve outlined seven questions that come up regarding child support repeatedly from our clients. Understanding that each case is different, and no two sets of circumstances are the same, the following information is vital to gaining a basic understanding of usual proceedings.
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1: Where do I even begin?
In Virginia, the process for obtaining court ordered support begins with a petition filed in the Juvenile Court for the city or county in which the child resides, administratively through the Division of Child Support Enforcement (DCSE), or in Circuit Court as part of a broader divorce action. Generally, there are no filing fees associated with filing a child support petition.
Most support petitions are handled through the Juvenile Court. There, once the petition is filed, it is processed, assigned a case number, and an initial hearing is set. The petition is then sent to, or served on, the non-filing parent. In some instances, a support obligation will be calculated at an initial appearance. However, often discovery (questions and requests for documents relevant to support issues) is needed to determine the financial situation of the parties; this process can require an additional hearing date to be set.
2: How is the obligation determined?
Many people are surprised to learn that in Virginia support calculations are run using gross income. For the purposes of child support, the Virginia Code defines gross income as income from all sources including but not limited to salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, some rental income, gifts, prizes, or awards.
The minimum documents necessary for review to accurately determine a support obligation include: (1) proof of income for both parties; (2) proof of daycare costs incurred for the child(ren); (3) proof of health insurance premium costs expended for the child(ren); and (4) any documentation regarding the support of other children living in the home or otherwise being supported by either parent. If income information is withheld or otherwise unknown, the discovery process becomes necessary.
In deciding support, the documents referenced above are reviewed and the financial information resulting from those documents (gross monthly income, daycare and healthcare costs, and considerations for other children or child support obligations of the parties) are input into child support guidelines which will produce the total amount of support payable to one party by the other. There are separate guideline formulas for different custody situations and the guidelines used can affect the total amount of support paid.
3: How do I obtain an order?
If the parties can agree upon input numbers with the assistance and guidance of their lawyers, an agreed upon order can usually be entered. If there is a disagreement about a component of the calculation, then a trial may become necessary. At trial, testimony will be heard by a judge and evidence submitted so that the judge can determine the correct input values for the child support guideline formula.
Once the amount of support is calculated, a judge will enter a support order. In Virginia, once a petition is filed, the effective date of the support obligation will be retroactive to the date of the initial filing. In some instances, it can take months for a case to go before the court. During this time, unpaid support or “arrears,” can accrue. A seasoned child support lawyer will often advise their client, if they are the party who may be paying support, to set aside funds for the payment of these arrears while the case goes through the court system.
A statement setting forth how the arrears going back to the date of the filing are to be paid is often included in a child support order. The court will also give credit for estimated child support payments made while awaiting trial so long as those payments were clearly marked as child support.
Upon entry of an order, child support can be paid and received between the parties themselves or with the assistance of DCSE. In some cases, a wage withholding order can be put in place. This requires the employer of the parent paying support to remit child support payments directly to DCSE which then forwards said support on to the receiving parent.
4: Are there any accounting requirements for the payments?
While there is no statute regarding how child support is to be spent nor requiring the receiving parent to keep an accounting of where the funds received are expended, it is expected that child support payments help to provide food, clothing, and shelter, as well as contribute to meeting other basic needs and wants of the parties’ child(ren) in common.
Both the parent receiving support, and the parent paying support should keep track of the payments sent and received. It is recommended that you avoid paying or receiving cash for support payments as this form of payment is not easily traceable in the event of a dispute. A simple spreadsheet with the date, method, and amount of payment can always be helpful to keep separate track of payments sent or received. If the need should arise where you must prove what you’ve paid or received, you (and your attorney) will be thankful for the additional record keeping.
DCSE isn’t a replacement for a knowledgeable child support attorney however, it can be useful in ensuring payments are timely paid and delivered to the recipient – especially in cases where child support has been historically difficult to collect. If DCSE is involved in a case, it will keep an accounting of support exchanged through the agency. It can also assist in cases where excessive arrears need to be recovered. For more information about DCSE, click here.
5: How do I modify child support?
It is critically important to note that support payments made per a Court order must continue unless officially changed by the Court by the entry of a new child support order. Even if there is an agreement between both parties to pay a different support amount, it is not enforceable unless the Court has entered an order memorializing the new agreement. Support may be modified based on a change in circumstances such as getting a new job, losing a job at no fault of your own, having another child, losing a child or a child emancipating, and/or significant increases or decreases in daycare costs or healthcare premiums. These examples are not all inclusive.
A modification action is begun by filing a Motion to Amend. In modification proceedings, the new amount of support effective date can vary but it will not pre-date the filing of the motion. If you feel your support order needs to be modified, you should contact a child support attorney to discuss your reasons for seeking a change.
6: How is a child support order enforced?
Unfortunately, for a variety of reasons, support is not always paid on time. In this situation the recipient parent does not have the right to withhold parenting time from the paying parent – parenting time is not conditioned upon the payment of child support unless a court order says otherwise.
The appropriate avenue for enforcement of a support order in the event of non-payment is to file a show cause against the paying parent. Enforcement actions such as a show cause can result in an arrears amount being set, payment terms for any arrearage being established, attorney’s fees being assessed against the noncompliant party, and possibly even jail time. A knowledgeable child support lawyer can assist with both filing a show cause and defending against one, should the need arise.
7: When does child support end?
In Virginia, absent an agreement between the parties to pay for a longer period, child support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs. The court may also order the continuation of support for any child over the age of 18 who is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking or receiving child support.
If child support that became due before a child reached the age of 18 or graduated from high school is unpaid at the time of either of these events, it is still owed. If you need assistance with collecting past due child support, our child support attorneys may be able to help.