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Child Support – 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 by finding one of the circumstances listed in Section 20-108.1.

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 insurance costs paid out of pocket.
  2. Child care costs incurred for the child because the custodial parent is working.

If the parties have other minor children they support, either directly because they live in their home or by paying child support, an amount is subtracted. If there is a child support order, the amount of the order is subtracted from the party’s income. If the child is living in the home, the table amount for one child is subtracted from the party’s income.

The resulting figure 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.

You can use a worksheet to calculate the amount according to the sole custody formula. You will have to look up the table amount that goes on line 7(a) in Virginia Code Section 20-108.2.

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

Child Support – Departure from the Guidelines

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 family members.
  2. The custody arrangements, including the cost of travel for visitation.
  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. Direct payments ordered by the court for the benefit of the child such as life insurance, or education expenses.
  6. Extraordinary capital gains such as capital gains resulting from the sale of the marital home.
  7. Any special needs of a child resulting from any physical, emotional, or medical condition.
  8. Money that the children have in their own right, such as a trust fund.
  9. The standard of living the family enjoyed during the marriage.
  10. The earning capacity, obligations and needs, and financial resources of each parent.
  11. Provisions made with regard to marital property.
  12. The tax consequences to the parties regarding claims for dependent children and child care expenses.
  13. A written agreement between the parties that includes the amount of child support.
  14. Such other factors as are necessary to consider the equities for the parents and children.

Child Support – 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 actually pay. 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.

Child Support – 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.

Child Support – DCSC

Virginia has an agency with the sole mission of collecting child support.  It’s called the Division of Child Support Enforcement and is known by the acronym DCSE.  Here is the link to their site.

DCSE will go to court for the custodial parent to get an order for child support.  They will also go to court to enforce that order.  Every day, all over Virginia,  lawyers for DCSE get child support orders started and have parents who fail to pay their support put in jail.

DCSE suffers from the usual problems of a large government agency.  It can be frustrating to deal with them both for the person paying and the person receiving the child support. Parties who have to pay support complain to us that DCSE treats them rudely and is unresponsive when they call. Recipients complain to us that DCSE is slow to act.

When we are representing recipients what we often do is try to jump start the DCSE process. We will file a petition for support and ask the clerk’s office to set the hearing on a day when DCSE will have its lawyer in court. When we want to have a non-paying parent held in contempt but want to save the client money, we will file the petition and have it set on a DCSE day.

When we represent the paying parent, we try to negotiate with DCSE but often have to file a case in court to have a judge resolve the issue.