General Guide to Virginia Child Support Laws
In Virginia, both parents, regardless of whether married or not, have an obligation to support their children. Child support is calculated based on the combined income of both parents. This ensures that the children benefit from what the parents could have provided in a single household. The law assumes that the custodial parent provides for the child's basic needs. Therefore, the noncustodial parent makes the child support payment to the custodial parent.
Virginia Child Support Guidelines
Virginia Code § 20-108.2 sets out the guidelines used in all child support cases in Virginia. Virginia child support guidelines is a formula used to calculate the amount of child support. Some of the criterions under Virginia child support guidelines include each parents' gross income (see below section titled "What is Considered Income" for details on what is defined as gross income), the cost of medical insurance for the kids, childcare costs while the parent is at work, and the number of children for whom child support is being calculated. If the parties have “other children” (such as by prior marriage), the guidelines give a credit to that parent in the amount of court ordered support paid for the “other children”, or if there is no court order, then in the amount provided under the guidelines. There are three different calculations under the guidelines, one for each type of custodial arrangement: Sole, shared, and split custody.
Sole Custody Guidelines
Sole custody guidelines apply when one parent has primary physical custody. Sole custody guidelines do not necessarily mean that the parent has sole physical custody. Sole custody guidelines apply even if the parties may be sharing joint legal custody, primary physical custody to one parent and visitation with the other parent.
Shared Custody Guidelines
Shared custody guidelines are used when one parent has custody or visitation of a child or children for more than 90 days of the year. Generally, the closer the parties are to a 50/50 custodial arrangement, the lower the child support obligation.
Split Custody Guidelines
Split custody guidelines apply where the parties have at least two or more children and each parent has primary physical custody of at least one child.
What is Considered Income
Child support is calculated based on each parent's “gross” income (before taxes) and not net income (after taxes). Income is defined broadly. It is more than what a parent may earn from a paycheck. Virginia defines income as including but not limited to “income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits… workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, spousal support, rental income, gifts, prizes or awards.” Public assistance, federal supplemental security income, and child support received to support another child are not considered as income for purposes of child support calculations.
Deviating from the Virginia Child Support Guidelines
Virginia Code § 20-108.2 establishes a “rebuttable presumption”, meaning that the child support amount under the guidelines is presumed to be the correct amount of child support to be awarded. However, in rare cases the court may deviate from the guideline child support amount and order an amount different than the guideline amount, which may be higher or lower than the guideline amount. The court looks at various factors outlined under the Virginia Code § 20-108.1 to determine whether an amount different from the guidelines should be awarded. In order to rebut the presumption, the court is required to make written findings in the order that the application of the guidelines would be unjust or inappropriate. If a judge deviates from the guidelines, he or she must state in writing the amount of support that would have been required under the guidelines and must give a justification of why the order varies from the guidelines.
Imputation of Income for Child Support
Sometimes a parent may voluntarily quit their job and take on a lesser paying job. Under these circumstances if the court finds that the parent is “voluntarily underemployed”, the court may calculate the amount of child support based on the parent's prior high paying job. Similarly, if a parent voluntarily quits their job or is fired due to misconduct, the court may find such parent to be “voluntarily unemployed”, and the court may calculate child support based on the income from that job. The court may also look at the parent's work history, prior earnings, education level, and the availability of jobs in the region to determine whether income should be imputed on a parent and if so, how much.
When Child Support Begins
The parties' agreement, if there is one, can outline when child support payments will begin. However, if there is no such agreement, under Virginia law the amount of child support ordered by the court can be made retroactive to the date the petition for child support is filed. Therefore, if a petition for child support is filed and the amount of child support is determined by the court months down the line, the payor spouse will owe child support arrears dating back to when the petition for child support was filed.
Modification of Child Support
Child support is modifiable if there has been material change in circumstances, such as change in the parties' incomes, changes in the cost or status of childcare, if a parent has another child who is born after the child support order was entered, a change in the custodial arrangement, etc. If a parent is paying child support for several children and the obligation to pay child support for one of the children's ends under the Virginia Code, the payor parent must file for modification of child support so the amount of child support can be recalculated of the remaining minor children. The child support amount does not automatically change or go down once the child ages out under the Virginia Code.
Termination of Child Support
Under Virginia law, the child support obligation terminates when a child reaches 18 years of age. But child support will continue for a child over the age of 18 who is a full-time high school student, not self-supporting, and living in the home of the parent seeking or receiving child support. Under these circumstances, child support will continue until the child reaches the age of 19 or graduates from high school, whichever occurs first.
The court may also order that child support be paid or continue for any child over the age of 18 who meets the following requirements: (1) the child is severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 (or the age of 19, as per the above paragraph); (2) the child is unable to live independently and support himself, and (3) the child resides in the home of the parent seeking or receiving child support.
Enforcement of Child Support Order
If a parent is delinquent in paying child support ordered by a court, the other parent can seek enforcement of the order through the court or through the Department of Child Support Enforcement.
If you are facing a child support issue, be sure to consult with a family law attorney who can guide you through the process. At Raheen Family Law, we will advocate for your interest and provide you the knowledge and guidance you need so we can help you achieve the best possible outcome. Contact us today to schedule a consultation.