Child support can be a difficult subject for parents who are separated and/or going through the divorce process. Deciding who should give what and how much to support their child can create lasting contention between couples and leave children confused as they stand in the middle of this legal crossfire.
If you and your soon-to-be ex-spouse have minor children together and plan to have a child support arrangement, here’s a brief guide to understanding child support enforcement in the Commonwealth of Virginia. This guide also applies to individuals who share a child together but have never been married.
In Virginia, the Division of Child Support Enforcement, (“DCSE”), ensures that all parents who owe child support are making their court-ordered payments. This agency collects payments from non-custodial parents, disburses support payments owed to custodial parents, and facilitates the filing of complaints if support payments are not made.
Virginia Code § 20-108.2 sets forth what are known as the “child support guidelines” for Virginia’s courts. At its core, it is a mathematical formula that primarily incorporates each parents’ gross income from all sources, as well as considering the number of days the child is in the care of each parent, whether either parent is paying for work-related childcare, and whether either parent is incurring monthly costs to provide health insurance for the child. Most Virginia courts and the attorneys who practice in them use a software program to assist them in making these mathematical calculations quickly and easily, including DCSE.
Because these are “guidelines” only, parents are permitted to present evidence to the court to ask for an upward (increase) or downward (decrease) in the guideline amount a court might otherwise order. This is very common when a party is working a job that pays tips, receives outside income or support from other sources, or perhaps is intentionally trying to remain unemployed or work less than full-time to ensure they pay less child support to the other parent.
If a judge is convinced that the “guidelines” would not result in protecting the child’s best interests (which is the paramount concern of the court), it can find – in writing – that there is a reason to deviate from the “guideline” and order a different amount of support.
Virginia divides the guidelines for child support proceedings into three main categories: sole custody, shared custody, and split custody.
- Sole Custody Guidelines: For child support purposes, “sole” refers to the number of days per year a child spends with each parent in his or her physical care. If a child spends 90 days or less with one parent, then the parent who primarily cares for the child is deemed a “sole” custodian for child support, and the court applies a “sole” custody guideline.
- Shared Custody Guidelines: For “shared” custody guidelines, the child must be shown to be spending more than 90 days per year with the so-called visiting or non-custodial parent. A “day” is defined as a 24-hour time period. A “half-day” is a 12 hour time period. Parents can agree in a Consent Child Support Agreement to deviate from Virginia’s definition of a “day” and agree it simply means “overnight” with either parent. If a child is with a parent for more than 90-days, the ultimate result is that this parent will owe less child support to the other parent, because the law views this fact as meaning that the child is using more of the resources of the visiting or non-custodial parent during each calendar year as they spend more time with that parent.
- Split Custody Guidelines: Split custody guidelines refer to when parents split up more than one child they may share, such that one child lives primarily (or solely) with one parent, while the other child (or children) lives primarily (or soley) with the other parent. This means the court, in effect, must determine the number of days per year each parent has each child, and calculate a “guideline” for each child’s needs, and then determine as a matter of comparison of the two support amounts whether one parent owes child support to the other using a kind of set-off approach.
Not paying child support will not only have dire consequences for the child (whose needs will not be met without it), but also the parents involved. A parent who falls behind or stops paying completely can face possible jail time, in addition to incurring awards of interests and attorney’s fees against them. However, the parent cannot lose their right to visitation in Virginia, and the Virginia Code makes it clear that a parent cannot be denied visitation simply because he or she is not paying child support; however, on the other hand, a parent who is not being given visitation is also not permitted to stop paying child support if he or she is court-ordered to do so. Any such disputes about support payments and visitation must be addressed by the court, and not the parties using children’s visits as a form of retaliation.
States, including Virginia, have their own enforcement statutes in place to go after so-called “deadbeat parents” who fail or refuse to pay child support and set certain amounts that trigger enforcement actions which could include jail time. Federal laws have also been enacted which allow a parent to seek relief as a matter of criminal law if a parent owes more than $5,000 or has failed to pay for a period longer than one (1) year. See, 18 U.S.C. § 228 within Title 18.
This type of crime can become a felony if the amount unpaid exceeds $10,000 or has been past due for a period longer than two (2) years. Moreover, as payments are left unpaid, an accrual interest rate of 6% per annum, which only adds to the overall total past-due amounts for unpaid child support.
Given these serious consequences, it is always critical that a payor returns to court if they have genuine changes in employment or health that warrant a reduction in child support; and a recipient should consider not allowing things to escalate to this level as a parent serving time in jail is a parent who cannot work and, if convicted as a felon, may never be in the same type of employment or earning capacity he or she once had prior to being convicted.
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