One of the biggest considerations during divorce proceedings for a couple with minor children is the matter of child support. In Virginia, both parents are required to support their children. When spouses are divorced, this support often comes in the form of child support payments. Which parent pays child support and in what amount is determined based on multiple factors, including the custody arrangement of the parents.
Since Virginia law assumes the parent with primary custody is already supporting any children, the parent without primary custody is typically required to pay child support to the parent with primary custody. The Virginia Code sets out the guidelines used for determining child support obligations. The guidelines consider the number of children that need support and the parents’ combined monthly gross income, as well as custody arrangements.
- Sole Custody – if one parent has sole custody of all children, the child support owed is based on the proportion of each parent’s income to the combined income.
- Split Custody – if one child lives with one parent and the other child lives with the other parent, the support owed is the difference between the amounts owed by each parent as a noncustodial parent according to respective “sole custody” calculations.
- Shared Custody – if parents share custody of a child, the support owed is based on the percentage of days per year the child is with each parent.
Child support is typically paid until a child turns 18 or is legally emancipated. However, if a child is 18, is still in high school, is not self-supporting, and lives with the custodial parent, that parent can seek child support. Under these circumstances, child support will end when the child turns 19 or graduates high school, whichever comes first. Courts may also extend child support payments after a child turns 18, if the child is severely and permanently mentally or physically disabled; is unable to live independently, and resides with the custodial parent.
Courts typically follow the guidelines set out in the Virginia Code when determining a child support obligation. However, a parent can request a deviation from the guidelines and ask the court to raise or lower that amount. When making such a determination, the court considers many factors, including:
- Monetary support for other family members or former family members;
- Custody arrangements, including cost of visitation travel;
- Imputed income to a parent who is voluntarily unemployed or under-employed;
- Debts of either parent arising from the marriage for the benefit of the child;
- Court-ordered payments for maintaining life insurance coverage for the child, education expenses, or other court-ordered direct payments for the benefit of the child;
- Special needs of a child resulting from physical, emotional, or medical condition;
- Independent financial resources of the child;
- Standard of living for the child established during the marriage; and
- Earning capacity, obligations, financial resources, and special needs of each parent.
The court may also consider a written agreement between the parents which includes the amount of child support to be paid. Additionally, courts are permitted to consider other factors as necessary to consider the equities for the parents and children.
Modification of Child Support
Either parent may petition the court to modify the child support amount ordered if there has been a material change in the circumstances. The “material change” must have arisen after the original support order was determined. Examples of material changes include medical emergencies or occasions where the custodial parent’s financial circumstances drastically changes, either improves or worsens.
Additionally, if the non-custodial parent’s income increases, the custodial parent may seek an increase in child support. It’s important to keep in mind that a noncustodial parent’s lack of ability to pay child support resulting from voluntary unemployment (such as quitting your job), is not a sufficient reason to lower a child support obligation. Parents may also enter into an agreement modifying child support obligations, but the agreement must be reviewed and approved by a judge. The modification by agreement must still be based on a change in circumstances and be in the best interest of the child.
A parent who fails to pay child support may be guilty of a misdemeanor or required to pay a fine, in addition to any missing support payments. The child support process can seem confusing, so it’s helpful to consult with a family law attorney. Our family law attorneys are experienced in representing both custodial and noncustodial parents in child support matters and can help you navigate the process.