Introduction to Child Support
An unfortunate fact of economic life is that a family cannot live as cheaply divided as it can together. Thus, after a divorce, the living standard of the entire family is often lowered and the court often finds itself in the unenviable position of having to divide a scarcity of resources. Then too, there is the problem of changing the child support order to meet changing needs of children and enforcing court orders against fathers and mothers who either refuse to make court ordered child support payments or who cannot do so due to circumstances beyond their control. These problems, when added to the issue of custody, visitation and the division of property in a divorce, keep the family law courts of the country packed to capacity.
Both parents have a legal duty to support their child according to their ability to do so. In Virginia the child support guidelines are in effect, which provide a formula for calculating child support based on a proportion of each parent’s gross income. These guidelines are applied unless a party can show that application of the guidelines would be unjust and inappropriate in a particular case. This section discusses the issue of child support when viewed in the context of a divorce or paternity action. Just as courts must often make the crucial decision as to child custody and visitation, so too must it often determine how much child support the non custodial parent will be ordered to pay. This section will describe the considerations that a court will take into account when deciding the issue of child support, whether in a divorce or a paternity case. It will also describe the methods by which child support orders are enforced by courts and how to modify an order for support.
Establishing Child Support Payments
During a marriage or committed relationship, such issues are rarely a concern for the court. But when parents divorce or cease to live together with their children as a family, the courts are usually required to establish by decree the amount of child support a non custodial parent must pay. Like the issue of custody, this can be reached by agreement or by fighting it out in front of a judge. Child support payments, like alimony, may be incorporated into the divorce judgment or may be provided for in a marital separation agreement. You can avoid making child support a contested issue, and the legal expense of litigating this issue before a Judge by both parents agreeing to the appropriate amount of child support and making this agreement part of a marital separation agreement. In Virginia if the curt determines that there should be a deviation from the guidelines because their imposition would be “unjust or inappropriate” the court must put the reasons or findings in writing. The findings specifically must include the amount required under the guidelines; how the court order varies from the guidelines; how the best interest of the children are served as a result of the variance; and if any items of value are exchanged in lieu of money, and the worth of the items.
The Nature of the Child Support Order
There are several parts to most child support orders. First and foremost, the paying parent will almost always be ordered to make a monthly money payment to the custodial parent. The order will typically read, in part, as follows:
Father (name) is ordered to pay directly to mother (name) as and for child support of Tom and Mary, the sum of $300 per month per child for a total of $600, payable one-half on the first and one half on the fifteenth day of each month, said payments to continue until each such child shall die, reach majority, become emancipated or until further order of court.
Notice the following about this portion of the child support order:
It Requires a Direct Monetary Payment to the Custodial Parent
Many paying parents resent the child support order because it is made directly to the custodial parent and not the children. Because of this, some refuse to make the payments because they see it as a form of alimony. However, this is not true. The direct payments are to be used to pay for the vital needs of the children, such as rent, food, and clothes.
The Court Retains Jurisdiction to Change the Order.
A child support order is not set in concrete but is subject to change should future conditions warrant. Thus, either parent may petition the court to raise or lower support should conditions warrant (see below).
Payments Automatically Terminate When the Child Reaches Majority, Dies or Becomes Emancipated.
The purpose of this language is to provide for an automatic end to the support obligation when the child reaches majority or dies. However, the issue of emancipation is often in dispute and may require a court determination. Note: If you are making payments through the Child Support Enforcement Office, you need to file a modification to ensure that no arreages accrue.
Child Support Is an Enforceable Order of the Court
A child support order is as enforceable as any other court judgment or decree. Thus, a parent who is not paid child support can use each and every legal tool available to enforce the order, including wage garnishments, wage assignments, contempt of court decrees and the seizure of the nonpayor’s property by writ of execution.
The child support decree is not limited to an order of direct money payments to the custodial parent. Other areas of providing for the children’s needs are also usually addressed. The following language is an example of a typical child support order:
As and for additional child support, father (name) is ordered to maintain his children as beneficiaries on his health and life insurance policies available through his employment. Father is further ordered to pay for one-half of all uninsured medical, dental and ophthalmologic services provided for the children.
As and for additional child support, father shall pay directly to the ABC Daycare Cooperative, the full cost of afternoon after-school day care. However, should the children be enrolled in morning day care, such expenses shall be the sole responsibility of the mother.
As and for additional child support, father shall pay the round-trip plane and other reasonable costs of transporting the children for visitation with father, as provided in the visitation provisions of this order. However, during visits of two weeks or more, the father’s child support payments to mother shall be reduced by $50 per month per child.
These clauses illustrate the flexible nature of child support orders and the wide latitude a court has in creating a support arrangement it deems in the best interests of the children. (The court will try to maintain the lifestyle the children enjoyed before the divorce if the parents’ finances permit.).Thus, a parent can be ordered to maintain insurance for the benefit of children, pay medical bills, private school expenses, day care costs, transportation bills, music lessons and to pay or partially pay for other aspects of a child’s day-to-day life, activities and upbringing. The amount of support can also be reduced should the non custodial parent have physical custody of the children for a significant portion of the time, in which case the formula for split custody is used.
How the Court Determines the Amount of Child Support
Generally, child support payments are for the ordinary expenses of food, shelter, clothing, education and medication needs for the children only. In determining an award of child support, a court will look at all relevant facts upon the following issues:
The Needs of the Children.
For example, a sickly or developmentally disabled child will often require a higher level of support than a healthy child.
The Age of the Children.
Infants and younger children often cost less to support than older children, but daycare costs which can be significant will also be taken into account.
The Ability of the Non custodial Parent to Pay.
The court is limited in awarding child support by the ability of a parent to pay based on income from all sources. The new spouse’s earnings are only applicable if they are hiding assets or the paying parent is pleading that they are unable to pay due to debts or custodial parent is trying to show voluntary impoverishment. Generally your ability to pay does not include calculations of bills and debts such as car payments, credit cads, etc.
The Earning Capacity of the Custodial Parent
Both parents have the duty to support their children, not just the paying parent. Thus, the earnings or earning capacity of the custodial parent which are available to provide support for the children, and perhaps that of their new spouse, will also be considered when determining child support levels.
The Other Responsibilities of the Parents
The other lawful responsibilities of both parents will also be looked into in determining child support. For example, if the non custodial parent is paying child support from a previous marriage (a rather common occurrence), the court will take that obligation into consideration. Necessities of life, such as rent and food will also be taken into account by the court. However, the court will not reduce child support payments to make it easier for the parent to pay discretionary obligations. For example, a parent cannot provide for a charity or buy an expensive car at the expense of providing for his or her own children.
To assist the court in determining the proper amount of support, both parties will be required by the court to prepare a financial declaration that is signed under penalty of perjury. (See financial forms).. Each parent will be required to fully disclose their income (from all sources frequently including money earned by a new spouse or live-in-lover), the nature and extent of their property holdings such as bank accounts, investments and real property and their financial obligations. The court will rely heavily on these documents in making the order and thus it is in the best interests of the children that the declarations be filled out completely and honestly.
Child support hearings are often adversarial. That means that when the parents cannot agree on the support order, (sometimes after compelling mediation), the court will hold a hearing to decide the issue. (This is sometimes done in a chambers conference to save time.) At the hearing, each spouse (or their lawyer) will have the opportunity to cross examine the other on issues relevant to the support issue and each can subpoena documents and call witnesses to support his or her position as to the amount of child support that should be paid. Child support orders can also be appealed, although the likelihood of success is very slim.
The Virginia legislature has passed a law making it mandatory for the courts to use Child Support guidelines in all cases in which child support is sought. Although use of the guidelines is mandatory and there is a presumption that the guidelines amount is the correct amount to be awarded, the presumption is rebuttable. However, you must complete the guidelines and show the presumptive amount and then explain the rebuttal in the comments section of the guidelines. Parents cannot agree to waive a parent’s child support obligation.
The reason for the implementation of the Guidelines is that the General Assembly has decided that “the law and policy of this State is that the child’s best interest is of paramount importance and cannot be altered by the parties. A parent has a legal obligation to provide support for the child [in proportion to their gross earnings].”
The mathematical computation to determine the Guideline amount is fairly simple. The Legislature provided a form which must be followed:
There is a separate form for situations where the parents share physical custody of the children.
Only the Proper Court Has the Power to Order Child Support
A court that does not have proper jurisdiction (power) does not have the legal authority to order child support. In order for a court to have jurisdiction to compel a parent to pay child support, it must havepersonal jurisdiction over the parent. Personal jurisdiction means that the parent from whom support is sought must have sufficient contacts with the state in which the suit is brought.
A State that Entered a Valid Support Order Continues to Have the Power to Modify Child Support
Once a valid child support order is entered, that state continues to have the power to award child support even though it no longer has contacts with the supporting parent or children.
Parents Can Agree On the Level of Support
Parties frequently settle divorce or paternity cases between themselves without going to trial. Parties may include in their settlement agreement an amount of child support to be paid by the non-custodial parent to the custodial parent. However, even when the parties agree to an amount of child support the trial court is required under the guidelines to determine the guideline amount: compare it with the amount of support agreed upon by the parties; and not make an award less than the guideline amount unless convinced that award of less is in the best interest of the child. There can be no variance of the guideline amount if the court does not give its reasoning on the record in accord with the requirements of the law.
Courts Can Order Payment of College Expenses Even Though the Child Has Reached Majority
At one time, majority was reached at age 21. When it was reduced by law to age 18, a new problem was presented: Could the court order a parent to pay for his or her children’s college expenses as child support, despite the fact that they would be over 18 when the payments were made? In most states, that question has been answered in the affirmative – if the parent has sufficient resources – although the courts are not required to make such orders.
Child Support Is Not Tax Deductible
Unlike alimony, payments of child support cannot be deducted from the payer’s income taxes. However, if you pay more than 50% of the actual costs of child support, you can claim the child as a dependent to save money on taxes. Parents often agree on the issue of the dependents deduction so that both don’t make the claim which could trigger an IRS audit. If you are not the custodial parent and you want to claim the child as a dependent, you must get the custodial parent to sign an IRS form allowing you to claim them. This can be agreed to in your separation agreement.
Modifying Child Support
The court that makes the original child support award is said to have continuing jurisdiction to modify the order as conditions warrant. That being so, either parent may request the court to change the order throughout the duration of the child’s minority. Modifications will not happen automatically. One of the parents must request the change by a formal motion to the court.
Child support orders cannot be changed on caprice or because a court thinks that “it is time.” It must be based on evidence proving that sufficient grounds exist to make the change. This usually requires a showing of changed circumstances from the facts as they existed at the time that the last order was entered. (In the many years a child support order remains effective, the parent’s circumstances may change many times and thus so may the child support order.) . In Virginia, changed circumstances, is deemed to have occurred if the difference between the existing child support award and the award that would result from application of the guidelines is at least 10 percent of the existing child support award, but not less that $25 per month. This means that a modification for a lesser change is possible, but not necessarily guaranteed.
Many different scenarios can create changed circumstances. For example, if the paying parent has had a large increase in income, the court can order the child support increased. Or, if the child’s needs grow, such as if the child becomes ill or disabled, the amount of support can be ordered raised. Sometimes the mere passage of time creates the changed circumstances. For example, as a child grows older, it becomes more expensive to buy clothes, food and other necessities. These increased expenses can be enough to justify a raise in the support order.
Support can also be reduced upon a proper showing. For example, if the custodial parent inherits money, gets a large raise or otherwise has an increased ability to support the children, support payments may be reduced. Or, if the paying parent loses his or her job, the court can be asked to reduce support during the period of unemployment.
A mistake many parents make is to reach informal oral agreements modifying child support. This often provides the seed for future discord. The problem with oral agreements is that they are often vaguely worded and the memories or understanding of the parties may often differ. Thus, any agreement by parents to modify child support should be put in writing so that there are no misunderstandings later on. It is also a good idea to have a judge sign a court order based on the agreement.
Enforcing Child Support
A major headache for custodial parents, children and society is created when a parent refuses to pay his or her court ordered child support. This is a serious problem of national dimensions. A recent study found that less than half the parents awarded child support receive payment in full. In 1989 alone, $4 billion dollars that was owed in child support was not paid. This failure on the part of non custodial parents – usually but not always fathers – is a major cause of poverty in children. This not only affects the families but has an indirect impact on the society who must finance poverty programs to assist those in need.
In Virginia, each county has established a child support enforcement agency that can assist you in collecting child support from your spouse. The name of this agency is the Division of Support Enforcement, Department of Social Services, with the main office in Richmond. This agency has responsibility for collecting child support for families receiving public assistance, and also, upon application for non-public assistance families. Applicants for public assistance in Virginia must assign child support rights to the state and must help locate the parent absent from the home. Failure to cooperate may result in the denial of public assistance.
Services are available to non-public assistance parents by the payment of a non-refundable $20 fee. If you are representing yourself, and you are not on public assistance, applying to the child support agency in your county for assistance is an excellent method of obtaining legal representation at minimal cost (payment of $20.00 fee).
The custodial parent has many tools available to enforce child support orders, all of which should be considered if payments are not being made:
Use the Government’s Parent Locator Service
Nonpaying parents often hide from the custodial parent in order to avoid their child support obligation, often going so far as to move out of state to avoid their responsibilities. Such abandonments have caused many parents to go on welfare.
In order to remedy this problem, the federal government has created the Parent Locator Service, which allows the resources of the federal government including the Social Security Administration and the Internal Revenue Service, to be used to locate a nonpaying parent’s employer. Once found, the custodial parent or the state can enforce the child support order and collect unpaid support. The law also permits the IRS to pay child support arrears from tax refunds the nonpaying parent may be owed by the government. (The law also requires the states to establish a Parent Locator Services.) For more information on the Parent Locator Service, contact the local office of the Department of Health and Human Services.
Obtain a Wage Assignment
Virginia authorizes the court to order an employer to make direct payments to the custodial parent from the wages of the supporting parent. This procedure is known as a wage assignment or wage withholding. The wage assignment can be issued upon proper application by the court and served on the paying parent’s employer. Once implemented, the employer will deduct child support like any other deduction from the paying parent’s paycheck and send the money directly to the custodial parent. This is a very valuable tool – if the nonpaying parent holds a steady job.
Notwithstanding the methods of securing a wage lien offered the Virginia legislature has passed laws to assist recipients of support to collect the funds due them from spouses ordered to pay child support.
Bring a Civil Contempt of Court Action
If a person willfully disobeys a lawful child support order, he or she can be jailed for contempt of court. The civil contempt action is brought by the custodial parent. After that, the nonpaying parent will have to be served with process since he or she has the Constitutional right to appear at the hearing and present a defense. If the nonpaying parent is served with process and does not appear, the trial court will order a bench warrant issued for his or her arrest.
If the court finds beyond a reasonable doubt that the parent has willfully failed to pay pursuant to a valid child support order, the court can order the nonpaying parent jailed. (A parent who can show that they did not have the ability to pay will not be found in contempt of court, even though he or she will continue to owe the money.)
Often, the mere threat of jail is sufficient to pry open the recalcitrant parent’s pocketbook. However, in severe cases, parents will be jailed and often the jail sentence will be open-ended, terminating only when the proper payment has been made.
Seek a Criminal Prosecution
All states also have criminal statutes on the books to punish parents who refuse to pay their child support. If the custodial parent complains to the district attorney’s office, it may seek an indictment against the nonpaying parent in criminal court. If the defendant is found guilty, he or she may be jailed or the guilty parent may be put on probation and allowed to remain free if he or she pays all back child support and makes all future payments in a timely manner.
If Your Spouse Has Left the State
If your spouse has left the state, you can turn to the powers of the Uniform Interstate Family Support Act , whether or not you know where he/she is living. Every state, including Virginia, has adopted the act. In Virginia, complaints are handled through the Division of Child Support Enforcement and Juvenile Court of the county or city of your residence.
Ideally, here’s how it works. The state in which you reside is called the Initiating State. The state in which the absent parent resides is called the Responding State. The initiating state passes your complaint to the responding state. Then, if the absent parent’s residence is known, the responding state sends him/her a notice that a hearing on the support will beheld. If all goes well, and he/she responds and shows up for the hearing, a new order of support will be established. The support order, however, can be for the same amount-or-less than the original order.
If the absent parent’s residence is not known, the responding state has to attempt to locate him/her/ This is not easy. Firstly, the responding state has its own cases to take care of and the volume is great. Secondly, each state has it own forms, laws and procedures which adds to rather than solves the problem of child support collection. Thirdly, the responding state can not be completely sure that the amount is valid. It only has the documents provided by the initiating state. Therefore, the responding state may negotiate a reduced amount for arrearage. Again, it also may issue an order that lessens the amount owed. Keep in mind that the lower amount of the order is valid only for the responding state. The absent parent still owes the original amount in the initiating state and if he/she returns to that state is still liable for the amount as well as for any arrearage. Once an order is established under this act, the responding state can use its powers to collect the child support.
Please call our offices with any questions you might have. This text is provided only for information and is in no way intended as legal counsel.
DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.