Virginia child support laws can be tricky. Sometimes children are not receiving the full benefits they are entitled to. Other times, parents are paying way more than they can afford.
Further, many parents don’t know their rights and obligations under the law. That’s where we can help.
This guide will cover everything you need to know about Virginia child support laws. We’ll also answer a few common questions about child support orders in general..
Child Support Basics
In Virginia, parents are obligated to pay support to their children. You can apply for child support if you meet any of the following requirements:
- You are the custodial parent or the custodial guardian of a child.
- You are the noncustodial parent of a child who lives with a custodial parent or guardian.
- Your child is over 18, but you had a child support order established before the child turned 18, and are owed past due child support.
If you currently receive Temporary Assistance for Needy Families, then you do not have to complete an application. You will instead be referred to the Division of Child Support Enforcement (“DCSE”) and they will open a case on your behalf.
How to Apply for Child Support in Virginia
Contrary to popular belief, you do not always have to go to court to obtain a child support order. Generally you will file an application for child support with the Virginia Department of Social Services Division of Child Support Enforcement (“DCSE”). The application can be found here.
When applying 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 the mother and father of the children.
You will also be asked a few short questions:
- 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 that the amount of the award set out in the Virginia child support guidelines is the correct amount. Basically, this means that the court assumes the guideline amount is correct unless someone comes forward to contest and prove otherwise.
This presumption of correctness can be contested if the trial court finds that the application of the child support guidelines would be unjust or inappropriate based on the relevant evidence of the particular case and factors set forth in sections of 20-108.1 and 20-108.2.
In administrative proceedings, however, the Department of Social Services must use the Virginia child support guidelines to establish support amounts.
If the trial court fails to take into account all of the factors outlined above, then you can have their ruling reversed. Further, if the trial court is deviating from the Virginia child support guidelines, then their order for support must be in writing.
When do the support payments start?
Generally, your child support order will set a date for when your support payment will be due. However, the court may require you to pay as far back as when the complaint is filed.
Also, a party may petition the court for Pendente Lite award. Here, under the court’s discretion, the court may make you pay support while trial is pending.
How is Virginia Child Support Calculated?
Support awards are calculated using the Virginia child support guidelines. These guidelines are used to assess the child’s need and the parent’s ability to pay.
As you can see in the guidelines, the support will depend on a few factors:
- The number of children you have to support
- Your level of income
- The other parent’s income
- Any relevant custody arrangement
Keep in mind that 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 will be 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 shared custody arrangement, then your support amount will be based on the amount of days out of the year the child is with each parent.
Is my new spouse’s income considered in my child support calculation?
Generally, no. Only the income of the child’s legal parents is considered when determining the child support award.
Only the incomes of the legal parents are considered, not incomes of current spouses.
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 impute 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. Consider this example to see how this process works:
After his divorce, Fred was making $30,000 a year and ordered to pay $7,000 in Virginia child support. 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.
However, if you change jobs in good faith (i.e., not to cheat the system) then the court will likely not impute your income. The change in employment or income must be reasonable to the court in this scenario.
Some Common Questions
How long must I pay child support?
Generally, Virginia child support orders terminate when a child reaches the age of 18 or is legally emancipated. However, if the child reaches the age of 18, is still in high school, is not self-supporting, and is living in the home of the parent seeking child support, then the support must continue until either the child reaches the age of 19 or graduates from high school.
The court also has the discretion to continue support beyond the age of 18 if your child is severely and permanently mentally or physically disabled, unable to live independently and support himself, and resides in the home of the parent seeking or receiving child support.
Can I have my child support obligations lowered?
Yes. To have your child support obligations reduced, you must show a material change of circumstances that justifies the reduction. Further, you need to show that your lack of ability to pay is not due to your own voluntary act.
This “material change” must be something new that did not exist when the obligation was initially ordered. Common examples of a material change in circumstances include:
- Medical Emergencies
- The other parent’s financial situation improves
- A change in the Virginia child support guidelines
Can I have my child support award increased?
Yes. In fact, simply showing that the child’s other parent has increased their income is sufficient to have the support award increased, 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 benefit from his or her 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, a mother and a father cannot privately and contractually alter or modify any terms of child support without court approval. However, 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. On the other hand, payments to third-party vendors (telephone bills, tuition, etc…) generally count as gifts in the eyes of the court.
What happens if I overpay child support?
If you ever overpay in child support, you are not guaranteed that it will be credited to you.
In fact, Virginia courts have specifically held that overpayments by a parent cannot be set off against future payments required by the decree for the benefit of a child.
The consequences for not paying child support can be steep. In Virginia, those who fail to pay are guilty of a misdemeanor.
Upon conviction, he or she will be punished by:
A fine of up to $500, confinement in jail for up to one year, or both, or [placed] on work release employment for a period between 90 days and 12 months.
As an alternative to this punishment, the court could also require the non-payer to forfeit an amount of up to $1,000 to the person responsible for the child’s well-being. This is generally given to the other parent, or whoever currently acts as the guardian of the child.
The Commonwealth of Virginia protects the best interests of children. As a parent you are under a legal obligation to provide support for you child, even if your child does not live under your 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 and get you the justice you deserve.