Chapter 12

Child Support

Because Virginia has guidelines and a formula, child support is often one of the easier issues in a divorce. This chapter will explain the Virginia child-support guidelines and how child support is calculated in Virginia, and will address the most common questions regarding child support.

12.1 How Is Child Support Determined in Virginia?

Child support guidelines are used in determining child support.

12.2 What Is a Child-Support Guidelines Work Sheet ?

A child-support guidelines work sheet is used in Virginia to determine child support according to the child-support guidelines. There are two primary versions of the work sheet:

• one to be used in situations in which one parent has sole physical custody
• one to be used in situations in which the parents have shared physical custody

12.3 How Is the Monthly Basic Child-Support Obligation Determined?

The monthly basic child-support obligation is determined from a schedule in the Virginia Code. The exact amount in your case depends upon the total income of the parents, and the total number of children for whom child support is being paid. The schedule can be reviewed online at Code of Virginia §20-108.2.B. Go to www.vadivorcelaw.net (select) Virginia Code Sections, then, under Child support-cash medical support (select) Code §20-108.2.B or go here cgi-bin/legp504.exe?000+cod+20-108.2.

12.4 What Factors Are Used to Calculate Child Support?

Several factors are considered in calculating child support.

These include:

• both parents’ income
• spousal support
• support for other children
• the number of children of the parties
• the cost to provide health insurance coverage for the children
• employment-related child-care expenses
• the number of days the child spends with each parent

12.5 Will the Custody and Visitation Arrangement I Have Impact the Amount of Child Support I Receive?

Yes. If one of the parents has the child less than ninety- one days per year, then the regular child-support guidelines work sheet is used. If both parents have the child for at least ninety-one days per year, then the shared-custody guidelines work sheet is used.

12.6 How Are Days Counted?

A day is defined as a twenty-four hour period. Overnight but less than twenty-four hours counts as one half day. Time during the day but not overnight does not count towards the day count.

12.7 Is Overtime Pay Considered in the Calculation of Child Support?

Usually, yes, unless it is clear that it is not available going forward.

12.8 Will Rental Income Be Factored Into My Child Support, or Just My Salary?

Your rental income will be included as part of your income for purposes of calculating child support. You can have the gross rental income reduced by proving reasonable and legitimate expenses associated with owning the property.

12.9 What Else Is Included as Income for Purposes of Calculating Child Support?

For the purposes of calculating child support, gross income means all income from all sources including:

• salaries
• wages
• commissions
• royalties
• bonuses
• dividends
• severance pay
• pensions
• interest
• trust income
• annuities
• capital gains
• Social Security benefits (with exceptions)
• workers’ compensation benefits
• unemployment insurance benefits
• disability insurance benefits
• veterans’ benefits
• spousal support
• rental income
• gifts
• prizes or awards

  12.10 My Spouse Has a College Degree but Refuses to Get a Will the Judge Consider This in Determining the Amount of Child Support?

If a parent is underemployed or unemployed, the judge may impute income to that parent. If a judge imputes income to a parent, she is basing the support on that parent’s earning capacity rather than actual income. There are specific rules regarding what evidence must be presented before the judge will impute income, so you should discuss this issue with your attorney.

12.11 Is There a Way for Me to Calculate Child Support Without Hiring an Attorney?

Several websites provide a Virginia child-support calculator.

12.12 Can I Get Temporary Support While Waiting for Custody to Be Decided?

Yes, there are procedures available to obtain temporary child support. See chapter 18.

12.13 How Soon Does My Spouse Have to Start Paying Child Support for Our Child?

Your spouse’s legal obligation for child support begins once you file a request for child support with an appropriate court.

12.14 Will I Get the Child Support Directly From My Spouse or From the State?

Either parent can request that child support be paid through the Division of Child Support Enforcement (DCSE). If neither parent requests the involvement of DCSE, then the support will be paid directly from the other parent.

12.15 What Are the Pros and Cons of Having the Child Support Paid Through DCSE?

The primary benefit of using DCSE is that they will keep records of the payments, and they will take collection action against the party paying support if he or she stops paying. The downside is that DCSE is a governmental bureaucracy, so there are sometimes problems such as delays or communication issues.

12.16 Will Some Amount of Child Support Be Withheld From Every Paycheck?

The parent receiving child support can request that the support be withheld from the other parent’s paycheck. If sup- port is paid by payroll withholding, typically the same amount is withheld each pay period. (To calculate this amount, multi- ply the monthly child support by 12 and then divide that total by the total number of pay periods per year-usually 12, 24, 26, or 52.)

12.17 The Person I am Divorcing Is Not the Biological Parent of My Can I Still Collect Child Support From My Spouse?

The general rule in Virginia is that a parent only has a duty to support his natural or legally adopted children, not his stepchildren.

12.18 What Happens With Child Support When Our Child Goes to the Other Parent’s Home for Summer Vacation? Is Child Support Still Due?

Yes, child support is typically calculated taking into account the child’s schedule for the entire year. The child- support amount is then paid each month, even when the child is with the other parent.

12.19 When Does Child Support End?

Child support terminates once the child has 1) reached the age of eighteen, and 2) graduated from high school. Child support terminates at age nineteen even if the child has not graduated from high school.

12.20 Can I Expect to Continue to Receive Child Support if I Remarry?

Yes, your marital status has no impact on child support.

12.21 After the Divorce, if I Choose to Live With My New Partner Rather Than Marry, Will That Affect Child Support?

No, though there are exceptions. For example, if your new partner gave you a certain sum of money each month, or paid your mortgage or other expenses that could change your income which could affect the child-support amount. This answer applies equally whether you are married to or just live with your new partner.

12.22 Are Expenses Such as Child Care Supposed to Be Taken out of My Child Support?

Work-related child-care expenses are factored into the child-support calculation, and you are then responsible for the payment of your own child-care costs.

12.23 Am I Required to Pay for All Expenses for My Child With the Child Support I Receive?

You are responsible for all expenses for your child while he or she is in your care, and the other parent is responsible for the expenses for the child while the child is with him. Uninsured medical expenses for the child are shared by the parents. Expenses such as piano lessons and sports fees can be shared by the parents by agreement, but absent an agreement or specific terms of a court order, neither parent is required to contribute to the costs associated with extracurricular activities.

12.24 Can My Spouse Be Required by the Support Order to Pay for Our Child’s Private School?

Yes, the judge has the authority to order the payment of private school tuition, but that liability is not automatic. If you and your spouse cannot agree on whether your child is going to attend private school, or on how the tuition and costs will be paid, talk to your attorney about your options based upon the law and your specific situation.

12.25 Can My Spouse Be Required by Court Order to Contribute Financially to Our Child’s College Education?

An agreement between you and your spouse for the payment of college education costs for your child is valid, but if you cannot agree, the judge has no authority to require either of you to contribute to your child’s college costs.

12.26 What Is a Cash Medical Support Order ?

A cash medical support order directs you and the other parent to pay (in proportion to your incomes) the reasonable and necessary unreimbursed medical and dental expenses of your children.

12.27 How Does Providing Health Insurance for My Children Affect My Child-Support Amount?

The cost to add the children to your health insurance policy (the difference between the cost for you alone and for you and the children) is included in the child-support calculation.

12.28 Am I Required to Pay For My Child’s Uninsured Medical Expenses From the Child Support I Receive?

Each party is required to pay for his or her share of the child’s uninsured medical expenses. You can use any source of income you wish to pay your share.

12.29 Will My Child Continue to Have Health Insurance Coverage Through My Spouse’s Work Even Though We’re Divorcing?

The divorce does not impact a parent’s ability to provide health insurance coverage for his or her children.

12.30 After the Divorce, Can My Former Spouse Substitute Buying Items Directly for Our Child for Child-Support Payments?

No. If you seek child support through the Division of Child Support Enforcement or the court, then a child-support order will be entered that will have to be complied with. The other parent will have to pay you the child-support amount.

12.31 Can I Still Collect Child Support if I Move to Another State?

Yes.

12.32 I Live Outside of Will the Money I Spend on Airline Tickets to See My Child Impact My Child Support?

You can ask the judge to take that expense into account. Talk to your attorney about this issue.

12.33 Can the Judge Enter a Child-Support Amount Different From the Amount Called for by the Child-Support Guidelines Work Sheet?

Yes, the judge can deviate from the guidelines amount for one of the reasons listed in the Virginia Code. These reasons, commonly referred to as Child Support Deviation Factors, are listed in the appendix.

12.34 Does Interest Accrue on Past-Due Child Support?

Yes, at 6 percent per annum.

12.35 What Can I Do if My Former Spouse Refuses to Pay Child Support?

You first need to obtain a child-support order. You can then have the Division of Child Support Enforcement collect the support for you, you can file a show cause yourself in the juvenile court, or you can have your attorney help you collect.

12.36 At What Point Will the Division of Child Support Enforcement Help Me Collect Back Child Support, and What Methods Do They Use?

The DCSE will help you collect child support as soon as an administrative or court order for support is entered.

Upon your request or where a delinquency equal to at least one month of child support exists, the state can issue an order requiring that the parent’s employer withhold income to satisfy the child-support obligation.

When past-due support is owed, a lien may be placed on the property or assets may be collected from the delinquent parent’s financial accounts.

Within certain limits, unemployment compensation may be intercepted to satisfy a child-support obligation.

Federal and state tax returns also may be intercepted where a delinquency of at least $25 exists.

Under certain circumstances, where an arrears of at least

$1,000 for an ongoing support obligation exists ($500 for arrears-only), the property of the parent owing support may be seized and sold.

Where other methods have failed or no other method is feasible and the amount of delinquency exceeds $1,000, bonds, securities, or guarantees may be used to collect back child support.

Driver’s licenses, professional licenses, and recreational licenses can be suspended if support payments of $5,000 or more are delinquent for ninety days or more.

Where more than $2,500 is owed, the U.S. Department of State will not issue a U.S. passport. In some cases, failure to pay child support can result in a jail sentence.

You must initiate contact with DCSE if you want help in collecting your child support.

12.37 Can Child Support Be Changed?

Yes, if there has been a material change in circumstances. To change or modify child support, there has to have been a significant change affecting your income, the other parent’s income, health insurance costs, child-care costs, or the number of children covered by the support order.

12.38 Our Son Is Will the Other Parent Have to Help Support Him After He Turns Eighteen?

That is an option, but it is not automatic. Make sure you obtain legal advice on this point as early as possible, and well in advance of your child’s eighteenth birthday. You may be required to seek and obtain a court order prior to your child turning eighteen.

12.39 If I am Awarded Child Support, Can This Obligation Be Discharged if My Former Spouse Files for Bankruptcy After Our Divorce?

No.

12.40 My Husband Pays Child Support a Few Days Late Every What Can I Do About This?

You can seek a wage withholding order .

12.41 Can I Insist That My Ex-Wife Provide an Accounting of How She Spends the Child Support I Provide?

No, she does not have to account to you for how she spends the child support.