In Virginia, a parent who does not have primary physical custody of their child generally has a duty to pay child support. This duty can arise from either one parent filing in court for child support or from filing with the Division of Child Support Enforcement (DCSE), for a determination and entry of an administrative order.
Unless a person has a good reason for not paying child support, such as being on SSI disability, there will likely be an award of support for at least $68, which is the current Virginia state minimum of child support.
Child support can be set in one of two ways. The first is for the primary physical custodian to file for child support in the local court. This requires filing a petition for child support and paying the filing fees. The appropriate documents for filing can be found here: https://www.vacourts.gov/forms/district/jdrcourt.html. Once both parties have been served, the court will set a trial date and the judge will issue a ruling on the amount of child support that is owed. The court can award support dating back to the initial filing, and the payor will have to pay toward the arrears incurred prior to the trial date.
The second way for child support to be set is through the division of child support enforcement (DCSE). This can be done by the parent who has primary physical custody of the child filing out an online application. Once the application is filled, each parent will receive a packet that requests financial information so that an agent can determine the appropriate amount of child support. If parties do not provide sufficient information regarding their incomes, support will be set at the state minimum. Once DCSE determines the amount of support and sends notice to the parties, either side can petition the court if they disagree with the calculation provided.
When determining child support, both the court and DCSE will rely on Virginia Statute § 20-108.1. In short, the statute states that to determine support, the court must look at all sources of income for both parties, costs for the children such as health insurance costs and day care costs, and calculate the appropriate amount. The statute goes into great detail about how to calculate support; but, a simpler method is to use the support calculators that are available.
Determining each party’s income can be difficult. The general rule of thumb is that any money you receive throughout the year, whether taxable or not, will be income for purposes of calculating child support. This can become problematic when one party receives a bonus at work which is not regular.
The court will treat bonuses as regular income unless argument is presented to prove otherwise. If a bonus was received only one time, and the party is not eligible to receive further bonuses in the future, it may not be included in determining child support. In the instances where a bonus is not regular income, the court has the option to take an average income over a certain number of years in order to decide the most appropriate amount to use for determining child support. If the court finds that the bonus is a fairly regular part of income, it will be applied to overall income of that party. If the court finds that the bonus is not regular, it may be applied only to a certain time frame for purposes of calculating the support.
Once a request for child support has been filed, it is retroactive back to the date of filing. If you are the one paying child support, by the time court decides on what amount you should pay, there may be a large amount of arrears owed to the other parent. The court will calculate the arrears and add an arrears payment to the total child support amount owed.
In many cases, one party may file for child support in the juvenile and domestic relations court and end up filing for divorce in circuit court, thereby taking the child support issue to the circuit court. For some, this may confuse the issue of arrears; however, the statute and case law is very clear that arrears will be set as of the date of filing with the juvenile court. While some courts may try to push back on the date of filing, when looking at Virginia Code § 16.1-244, taken in conjunction with Virginia Code § 20-108.1(B), it is clear that retroactive child support starts as of the date of filing in the Juvenile court.
If you have a current child support order, it is important to follow the order as written by the court. It is not uncommon for circumstances to change since the entry of the support order. In those instances, the parents might agree to modify the support amount, but if it is not a court order, the original support amount remains due and owing.
For modifications, a petition for modification must be filed with the court and within that petition, the party seeking the modification must show that there has been a substantial and material change in circumstances since the entry of the last support order. Examples of what a substantial and material change may be a change in physical custody, an increase in income, a decrease in income, or a change in the amount of childcare and medical insurance paid on behalf of the child.
For modifications of support, the court can award the new amount of support back to the date of filing for the modification; not before. When calculating the modification, the court will undertake the same calculations as outlined above for the initial determination. It is always advisable to file for the modification as soon as you believe there is a change in circumstances as nothing can modify the obligation to pay support except for a court order.
If you have an agreement with the other parent about changing the support amount, that does not modify the court order. We frequently see where the parents have agreed to forgo child support but no modification has ever been filed, meaning that the original amount is due and outstanding.
When filing for an initial child support determination or a modification of child support it is important to remember to be forthcoming and honest with your income. It also may be advisable to work with your attorney to determine an appropriate amount of child support to pay even before it is ordered by the court.
If you are facing a child support case, it’s time to get counsel. The top-rated attorneys at Melone Hatley, P.C. are here to help! Melone Hatley, P.C. is a family and estate firm serving Virginia Beach, Richmond, and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives. For more information about child support, contact our Client Services Coordinator at 800.479.8124 or book your appointment online.
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