Virginia child support laws can be tricky. Sometimes, children don’t receive the full benefits they’re entitled to. Other times, parents are forced to pay way more than they can afford.
Additionally, many parents don’t fully understand their own rights and obligations. For this reason, parents should always direct any and all child support questions to their family law attorney. However, you can still educate yourself on the basics of the process before scheduling an appointment.
In this guide, we’ll cover everything you need to know about Virginia’s child support laws. We’ll also answer a few common questions about child support orders in general.
Child Support Basics
In Virginia, parents are legally obligated to support to their children, regardless of their circumstances. When one parent has sole custody over a child, this is generally done through child support payments. These payments are based on the combined income of both parents, as laid out in the Virginia Code.
Only the parent or guardian with custody of the child may file for child support in Virginia. This is because the Virginia Code assumes that the custodial parent is responsible for the daily costs of raising the child. Essentially, the purpose of these laws is to help the child grow up in an economic situation similar to what they’d have if their parents were still together.
As a parent or guardian, you may apply for child support in either of the following situations:
- You are the parent or guardian of a child, and have sole custody over that child.
- Your child is over 18, but you had a child support order established before the child turned 18, and are owed past due for that child support.
Further, in most cases you don’t even need to go to court to file for child support. There are two general paths you can follow to receive support outside of the courts, both of which go through Virginia’s social services department.
In the first path, Virginia’s social services department can issue child support orders on its own, without the intervention of the court. Alternatively, Virginia’s Division of Child Support Enforcement (DCSE) will open child support cases automatically for certain individuals, such as those who receive Temporary Assistance for Needy Families benefits.
How to Apply for Child Support in Virginia
As mentioned, you don’t always have to go to court to obtain a child support order. In most cases, all you have to do is file an application for child support with Virginia’s DCSE.
Think of court-mandated child support as simply an extra-reinforcement of the DCSE’s powers. Most child support cases that enter the court system do so because one parent has violated, or fundamentally disagrees with, the DCSE’s child support order.
When applying with the DCSE, you will need the following information:
- A photo ID.
- Your Social Security Number.
- Your Driver’s License Number.
- The SSN of each child you are applying on behalf of.
- A birth certificate for each child you are applying on behalf of.
- A signed, notarized Acknowledgment of Paternity (if one is available).
- Copies of previous protective, visitation, child support, and child custody orders.
- The full legal name, date of birth, SSN, addresses, employment, pay stub, list of assets, etc. of both the mother and father of the children.
The DCSE will also ask you a few simple questions, such as:
- Whether or not you are in the process of getting a divorce.
- Whether or not you are receiving any government assistance for you and/or your child.
- Whether or not you receive child support through another state or a collection agency.
Virginia child support guidelines create a “rebuttable presumption” in any judicial or administrative proceeding for child support. This essentially means that every agency will assume the award set out in the Virginia child support guidelines is the correct amount. Only a ruling in a Virginia Family and Domestic Relations Court can overturn this presumption.
In this way, either parent can challenge the presumed amount laid out in Virginia’s child support guidelines. Most commonly, the custodial parent will ask for additional child support, while the non-custodial parent may ask for a reduction in the amount they’re required to pay.
If you feel the trial court failed to take into account all of the factors outlined above, you may also appeal their decision.
When do the support payments start?
Generally, the written child support order will list a date for when the first payment is due. However, in some cases the court may require that the non-custodial parent pay any support due since the original claim was filed. So, if the claim was filed two months ago, the order may also require that the non-custodial parent pay additional support for those two months.
As one final variation, the custodial parent can also petition the court for a Pendente Lite award. In this case, the court might require that the non-custodial parent pay support while the actual child support trial is pending.
How is Virginia Child Support Calculated?
Support awards are calculated using the child support guidelines outlined in the Virginia Code. These guidelines are used to assess both the child’s need and each parent’s ability to pay.
As you can see in the guidelines, the actual support the non-custodial parent pays will depend on a few factors, including:
- The number of children that need support.
- Each parent’s income (calculated as a percentage of their combined net income).
- Any relevant custody arrangements.
Keep in mind that, technically, each parent will have to pay his or her fair share of the total amount. How the amount is split will depend mainly on the custody arrangement:
- If you have a sole custody arrangement, then the child support owed is based on the proportion of what each parent contributes to the combined income.
- If you have a split custody arrangement (i.e. one child lives with one parent and the other child lives with the other parent), then you will do the same calculation as if you had a sole custody arrangement. Then, split the difference between the custodial parent of one child and the custodial parent of the other child.
- Finally, if you have a shared custody arrangement, the support amount is based on the percentage of days out of each year the child is with each parent.
Is my new spouse’s income considered in my child support calculation?
A common question people ask about child support is whether, after a parent remarries, the new spouse’s income is factored into the child support calculation.
Generally, the answer is no. The court only considers the income of the child’s legal parents when determining the child support award.
Cheating the System
Some parents, still heated from their divorce proceedings, will deliberately act to lower their income in the hope that it will lower their child support obligation. In a way, they try to cheat the system for their own benefit.
What these dastardly individuals don’t realize is that a court may still attribute income to a parent who is voluntarily unemployed or underemployed. To do this, they basically decide what that parent could earn, and go from there.
Put more simply, a court may treat the parent as if his or her income never changed. To see this process in action, consider the following example:
After his divorce, Fred was making $30,000 a year, and was ordered to pay $7,000 in child support. To get around this order, Fred decided that he would quit his job and live off his unemployment benefits.
Because Fred voluntary quit his job, a court will likely (absent some extenuating circumstance—e.g. medical problem) impute his income. This means that for the sake of child support calculations they pretend he is still making $30,000 per year. This means he must still pay the $7,000 obligation.
If, however, the non-custodial parent can prove that they changed jobs in good faith, the court likely won’t force them to pay the previous amount. For example, if they changed jobs for better benefits, or to be physically closer to their kids, the court likely won’t punish them.
Some Common Questions
How long do I have to pay child support?
Generally, Virginia child support orders terminate when a child reaches the age of 18, or is legally emancipated. However, there is one exception. If the child (1) reaches the age of 18, (2) is still in high school, (3) is not self-supporting, and (4) is still living in the home of the custodial parent, then that parent can still seek child support. In this case, the support payments will continue until the child reaches the age of 19 or graduates from high school, whichever comes first.
The court also has the discretion to continue support beyond the age of 18 if the child is severely and permanently mentally or physically disabled. In this case, the child must cannot live independently, and must reside in the home of the custodial parent.
Can I have my child support obligations lowered?
As mentioned earlier in this article, the non-custodial parent can petition the court to have their child support obligations lowered. To do so, you must show a material change of circumstances that justifies this reduction. Further, you must show that your lack of ability to pay is not due to a voluntary act on your part, such as quitting a good-paying job.
Further, this “material change” must be something new which did not exist when the obligation was initially ordered. Common material changes that hold up in court include:
- Medical Emergencies.
- Instances where the custodial parent’s financial situation drastically improves.
- A change in the Virginia child support guidelines.
Can I have my child support award increased?
Yes. In fact, simply showing that the non-custodial parent’s income increased is sufficient evidence for an increased award, as in the case of Conway v. Conway.
The logic is that any increase of salary would have been shared had the family unit remained intact. Therefore, the child should still benefit from the non-custodial parent’s raise.
Can the other parent and I agree to modify our Virginia child support agreement?
No. As stated very directly by the Virginia Court of Appeals:
Under Virginia law, parents cannot privately or contractually alter or modify any terms of child support without court approval. However, if petitioned, the court will sometimes manually approve a mutual modification so long as it is in the best interest of the child.
For instance, some non-conforming child support payments (such as fixing the other parent’s car) can be credited in place of an actual payment. This is especially useful for low-income petitioners, who can perform work that benefits their child in exchange for child support credits.
On the other hand, payments to third-party vendors (telephone bills, tuition, etc…) generally count as gifts in the eyes of the court. This means that, regardless of how many “gifts” the non-custodial parent gives the child, they are still on the hook for the government-mandated child support payments.
What happens if I overpay child support?
If you ever overpay in child support, you are not guaranteed a credit for that support.
In fact, Virginia courts have specifically held that overpayments by a parent cannot be credited towards future child support payments. In a way similar to the previous section, these overpayments are considered gifts, and do not count towards future payments.
The consequences for not paying child support can be steep. In Virginia, those who fail to pay are guilty of a Class U misdemeanor.
This act is punishable by:
Alternatively, the court might instead require that the non-payer pay a fine to the custodial parent or guardian of an amount up to $1,000. This amount is in addition to any pending child support payments that the non-custodial parent has yet to pay.
The Commonwealth of Virginia protects the best interests of children. Non-custodial parents are under a legal obligation to provide support for their child, even if the child does not live under their roof.
The child support process can daunting. However, you don’t have to go through it alone. An experienced Family Law attorney can help you through the process, as well as make sure you receive the payments you’re due.