Child Support Virginia ~ Law Offices of Diane Fener ~ Divorce Attorney Lawyers Virginia

(757)491-0240

Child Support

Everyone is legally obligated to support the children they bring into the world. If you are the father or the mother, you must contribute to the cost of supporting your child. If you are not the biological parent and have not adopted the child, or have had your parental rights terminated, you have no support obligation.

Paternity

The threshold question is whether you are the biological parent. For obvious reasons, men are the ones whose parentage can be uncertain. In earlier times the process of establishing paternity depended very heavily on the the testimony of the mother which can be unreliable in some cases. Today genetic testing has eliminated most doubt about paternity. Virginia has a contract with firm called Labcorp to perform DNA testing in child custody cases.

Acknowledging Paternity:

The term for a man who the mother alleges to be the father of a child is called the "putative father." If you are a putative father you may be asked if you want to acknowledge paternity. This is not something that you should do casually.

Once you admit to being the father of a child, you have obligated yourself to support that child until he or she is eighteen years old. That can amount to a very large sum of money. And, they will put you in jail if you don't pay it.

In 2001, the law in Virginia was amended to allow a man who has been determined to be the father of a child to have that determination set aside if genetic testing establishes that he is not the father. Virginia Code Section 20-49.10 If, however, you have acknowledged paternity while knowing that you are not the father of the child, you cannot have that determination of paternity set aside.

You should not acknowledge paternity unless you are certain that you are the father or have made a carefully considered decision to acknowledge paternity despite having doubts.

Calculating the Amount

Child Support is determined according to a formula that begins by adding the parents' income together. Section 20-108.2 of the Code establishes a method for computing child support and a table of amounts to be paid depending on the parents' income. The judge can depart from what the Code provides but has to justify it.

The formula is different depending upon how much time the child spends with the two parents. If the parent who doesn't have primary physical custody has the child for less than 90 days a year you use one formula. If that parent has the child for more than 90 days a year, that is called shared custody and the calculation takes the percentage of time each parent has the child into account.

For the simpler case where the non-custodial parent has the child for fewer than 90 days a year, you start by adding up all of the income received by the parents. A number of other items are added to the basic child support obligation. They include:

(1) Medical and dental expenses that are not covered by insurance and cost more than $100.

(2) Medical insurance costs paid out of pocket.

(3) Child care costs incurred for the child because the custodial parent is working.

The total is then apportioned between the parents. This is done by dividing each parent's income by the total income of both parents. Each parent's share is figured by multiplying the resulting fraction times the support amount.

For example, assume Dad makes $2,500 a month, Mom makes $2,000 a month, and there are 3 kids. Their combined income is $4,500 a month. According to the guidelines table, the support figure is $1,193 a month. If the kids live with Dad, Mom's support obligation is 2000/4500 times $1,193 or $530.22.

Computation according to the shared custody formula is more difficult and you probably should have someone help you with it.

The Virginia Division of Child Support Enforcement has an online child support estimator that you can use to estimate the amount of child support that will be due based upon the parties' incomes. See: Child Support Obligation Calculator

Departure from the Guidelines

(20-108.1)

The Code allows the judge to deviate from the guidelines but requires a written explanation of the reasons for not following them. The Code lists the factors that can justify a departure. They are:

1. Actual support for other children or other family members.

2. The custody arrangements.

3. The income that a party who is voluntarily unemployed or under-employed could earn.

4. Debts incurred during the marriage for the benefit of the child.

5. Debts incurred for production of income.

6. Direct payments ordered by the court for the benefit of the child such as health insurance, life insurance, or education expenses.

7. Extraordinary capital gains such as capital gains resulting from the sale of the marital home.

8. The age, physical and mental condition of the child including extraordinary medical or dental expenses or child-care expenses.

9. Money that the children have in their own right, such as a trust fund.

10. The standard of living the family enjoyed during the marriage.

11. The earning capacity, obligations and needs, and financial resources of each parent.

12. The education and training of the parties and the ability and opportunity of the parties to secure such education and training.

13. The contributions (both in money and otherwise) of each party to the well-being of the family.

14. What was done with respect to the marital property.

15. The tax consequences to the parties regarding claims for dependent children and child care expenses.

16. A written agreement between the parties that includes the amount of child support.

17. Any interim order specifying the amount of child support that the parties may have agreed to.

18. Such other factors, including tax consequences to each party, as are necessary to consider to insure fairness.

Contempt

Child support is a serious matter. It is one of the very few debts that you can be sent to jail for not paying. You should do everything possible to avoid being ordered to pay more in child support than you can. Many people get behind in child support and never catch up. Unpaid child support accrues interest and if you are not paying enough, your debt can actually go up each month even if you are paying.

If you fail to pay child support after being ordered to do so the court can hold you in contempt. The principal penalty for contempt is being sent to jail. The order will specify a "purge amount" which is a dollar figure, usually less than the amount of the arrears that you can pay and be released.

This is because contempt is different from a sentence for a crime like arson. The purpose of the contempt penalty is to get you to comply with the court's order and once you have complied sufficiently, that purpose has been served and there is no need to penalize you further.

If you find that you cannot pay the amount your order provides, such as because your income has been reduced through no fault of your own or your expenses for other children that you support have increased you can ask the court to reduce the amount. If, however, your income has declined because you have voluntarily begun working fewer hours or just decided to take a few years off, you are unlikely to get your support requirement reduced.

Where to File

Because people move frequently, it is quite common for one or both of the parties to be living in different states while a support order is still in effect. It is usually more effective to enforce a support order in the state where the paying party lives. The primary motivator to get them to pay is the court's contempt power. It is easier for a court in the state where the person lives to use that power because it is easier for law enforcement personnel to take the person into custody and hold them until they pay.

The states are required to enforce each other's court orders. So the procedure is that you file a certified copy of the support order in the local court where the paying party lives. If they are not in compliance, you ask that court to hold them in contempt. The local jail is available to keep them uncomfortable while they find the money to pay at least some of what is owed.

You can also do the same thing if you are seeking an increase in support. The one thing you should consider before you do that, however, is how the two states compare in the way they determine the support amount. If the original order was issued in a state with a generous formula, you probably want to keep the case there and not go to the paying party's state to ask for the increase if that state has a less generous formula.

Home