By: Audrey Henderson

“[P]arents owe a duty of support to their minor children.”  Kelley v. Kelley, 248 Va. 295, 298 (1994).  The payment of child support cannot be contracted around by the parents, and furthermore, a court cannot be barred from exercising its power to calculate child support from such an agreement.  Id.  

Virginia Code § 20-108.2(B) provides a guideline of monthly basic child support obligations. The basic child support obligation is calculated based on the combined income of the parents and how many children the couple has (both natural born and adopted).  Id.  A court may allow an exemption that would make the child support obligation lower than the statutory minimum provided by the guideline.  Id.  Exemptions may include: (1) if the obligor is “unable to pay child support because they lack sufficient assets from which to pay the support and who, in addition, are institutionalized in a psychiatric facility”; (2) if the obligor is “imprisoned for life without chance of parole”; (3) if the obligor is medically disabled; or (4) if the obligor is “involuntarily unable to produce an income.”  Furthermore, if the gross income of the obligor is equal to or less than 150% of the federal poverty line, the court may set an amount that is lower than the statutory minimum, provided that the amount doesn’t impair the other parent’s ability to maintain sufficient housing and provide basic needs for the child.  Id.   

When the court computes the parent’s income, it includes income from: “salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes, or awards.”  Va. Code Ann. § 20-108.2(C).  However, there are some incomes that are not included when computing child support payments.  These include: “benefits from public assistance and social services programs, federal supplemental security income benefits, child support received, or income received by the payor from secondary employment income” that is for the purpose of paying a court-ordered child support debt from another relationship.  Id.  Examples of secondary employment incomes are “incomes from an additional job, from self-employment, or from overtime employment.”  Id.  In addition, if one of the parents is already paying child support from a previous relationship and that child is not a party to the current proceeding, then that amount will be deducted from the gross income of that parent.  Id.   

As per the establishment of a child support obligation, both parents are also required to pay “any reasonable and necessary unreimbursed medical or dental expenses.  Va. Code Ann. § 20-108.2(D).  This is calculated pursuant to the parents’ proportion of gross incomes.  Id.  These types of expenses may include “eyeglasses, prescription medication, prosthetics, orthodontics, and mental health or developmental disabilities services, such as services provided by a social worker, psychologist, psychiatrist, counselor, or therapist.”  Id.  A court will also take into consideration the costs for health care coverage, vision care coverage, and dental care coverage and add those expenses to the basic child support obligation.  Va. Code Ann. § 20-108.2(E).  Furthermore, if the custodial parent puts the child in some sort of licensed child-care system, those child-care costs will be added to the support obligation.  Va. Code Ann. § 20-108.2(F).  However, the court must “consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.”  Id. 

The amount of child support will also depend on your type of custody.  The Virginia Code notes three types of custody: sole custody support, split custody support, and shared custody support.  Sole custody is where one parent has full physical and legal custody of a child or children.  Split custody is where both parents have physical custody of the child or children.  Shared custody support is where a parent has “custody or visitation of a child or children for more than 90 days of the year.”

To rebut the presumption of the amount of child support set out by the statutory guidelines, the court evaluates all the relevant evidence.  Va. Code Ann. § 20-108.1(B).  This leads to a very fact specific inquiry and every case will be different.  Id.  The court will look at fifteen factors, but each factor may not be applicable in every case.

Virginia Code § 20-108.1(B) lists fifteen factors that Virginia courts evaluate to determine a rebuttable presumption of child support.

1. Actual monetary support for other family members or former family members;
   
2. Arrangements regarding custody of the children, including cost of visitation travel;
   
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an education or vocational program likely to maintain or increase the party’s earning potential;
   
4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;
   
5. Debts of either party arising during the marriage for the benefit of the child;
   
6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
   
7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
   
8. Any special needs of a child resulting from any physical, emotional, or medical condition;
   
9. Independent financial resources of the child or children;
   
10. Standard of living for the children or children established during the marriage;
    
11. Earning capacity, obligations, financial resources, and special needs of each parent;
    
12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
    
13. Tax consequences to the parties including claims for exemption, child tax credit, and child care credit for dependent children;
    
14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
    
15. Such other factors as are necessary to consider the equities for the parents and children.
    

Stay tuned for my next blog post "How Do I Change or Modify Child Support that is Owed to Me or that I Owe?"    

By: Melanie Eisenhart

Understanding how a court will evaluate a petition for modification to a custody order can make a significant difference in the outcome of that court’s ruling. In Virginia, courts initially decide custody based on what is in the best interest of the child. To determine this, a judge will consider the following ten factors on a case-by-case basis from Va. Code Ann. § 20-124.3: 

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs. 
2. The age and physical and mental condition of each parent. See Huck v. Huck, No. 1604-14-1, 2015 Va. App. LEXIS 184, at *6 (Va. Ct. App. June 2, 2015) (unpublished) (comparing the evidence related to the mental health of both parents, including the father’s anger and bullying and the mother’s anxiety and depression, the court refused to favor one parent over the other in consideration of this factor). 
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child. 
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members. See Forbes v. Forbes, No. 1081-12-1, 2013 Va. App. LEXIS 176, at *6 (Va. Ct. App. June 11, 2013) (unpublished) (denying the father’s motion to modify custody because the mother had a family support system living nearby).
5. The role that each parent has played and will play in the future, in the upbringing and care of the child. 
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.  
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.  
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference. See Sims-Bernard v. Bernard, No. 2090-12-2, 2013 Va. App. LEXIS 282, at *10 (Va. Ct. App. Oct. 8, 2013) (unpublished) (refusing the mother’s request for custody modification because, though her daughters stated a preference to living with their mother, this was not in their best interest due to the mother’s “mental abnormalities” in attitude towards their father).
9.   Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; See Craven v. Williamson, No. 1023-11-4, 2012 Va. App. LEXIS 2, at *3 (Va. Ct. App. Jan. 10, 2012) (unpublished) (determining that evidence presented at trial indicated a history of abuse when the father frequently lost his temper and yelled at his children, in addition to him “stomping” on one child in anger). 
10. Such other factors as the court deems necessary and proper to the determination. 

Once a custody order is entered, the parent seeking modification ordinarily must establish both that the circumstances have materially changed since the last custody order and that the best interests of the child require a modification of custody.[1] To determine this, the court looks at the evidence presented and compares it to the ten best interest factors discussed above.[2] Most importantly, while making this decision courts are not required to weigh each of the ten factors equally or to elaborate on the amount of weight or consideration it gives each factor.[3] However, the court’s findings must be supported by evidence on the record or this will be considered an abuse of the court’s discretion.[4]

An example of how courts may evaluate the ten best interest factors independently and in conjunction with one another can be found in Bostick v. Bostick-Bennett.[5] In this case, the court compared the father’s degree of parental stability (factor three) with the mother’s ability to actively support the child’s relationship with the other parent (factor six), and initially granted sole custody to the father because it found that he could offer the child a more stable living environment.[6] The mother, though not unfit, could not provide the same level of support to the child as the father; however, the court allowed for visitation to foster and encourage the relationship between mother and child.[7] A short time later, when the father petitioned the court to relocate his child to North Carolina, his request was denied because he failed to prove a material change in circumstances that would warrant the child’s removal from Virginia.[8] Looking at the evidence presented, the court concluded that maintaining a relationship between the child and her mother would be in the best interest of the child, and that this relationship would be jeopardized if the father was granted his request to move to another state.[9]

Material Change in Circumstances

While the ten statutory factors are important to the modification of a custody order, a petitioner must first show the occurrence of a material change in circumstances.  Next the petitioner should focus on these factors to demonstrate that a modification of custody is in the best interest of the child.

Virginia Code § 20-108 sets out one way for courts to determine if a material change has occurred by stating that the “intentional withholding of visitation of a child from the other parent without just cause may constitute a material change in circumstances justifying a change of custody in the discretion of the court.” A change in circumstances is not limited to negative events that may occur in the home of the custodial parent, though.[10] A material change may also broadly include changes that the child experiences, such as their level of maturity or any special educational needs, or may include positive changes to the circumstances of the noncustodial parent, such as remarriage or the increased ability to provide a stable home environment.[11] Ultimately, however, no change in custody will be allowed if the change in circumstances is not in the best interest of the child.[12]
 
In Haring v. Hackmer,[13] the mother alleged a material change in circumstances occurred that would justify modification to the custody order that originally granted the father sole custody of their child. Namely, the mother argued that the father’s circumstances had declined when he remarried, moved his daughter to a new school due to relocation within the state, his financial situation had deteriorated, he had an unstable employment history, the daughter's mental and physical health had deteriorated since living with him, he allowed his daughter's medical insurance to lapse, and had not ensured that their daughter received proper medical and dental care.[14] Conversely, the mother alleged that her circumstances had improved because she relocated within the state and had established a successful insurance business.[15] Considering the evidence presented at trial, the court found no material change in circumstances, and the mother’s motion for modification was denied.[16]

Courts have also found that the following conditions do not indicate a material change in circumstances:

• Rude behavior or inefficient communication regarding visitation scheduling between parents. Thurmond v. Gropper, 45 Va. Cir. 168, 172 (Va. Cir. Ct. 1998). 
• The custodial parent’s denial of visitation or the child’s statement that he does not want to return to the custodial parent’s home.  Heretick v. Cintron, No. 1377-00-2, 2001 Va. App. LEXIS 172, at *9 (Va. Ct. App. Apr. 3, 2001) (unpublished).
• A change in work schedule allowing a parent to work from home and care for the child, an increase in the length of a subsequent marriage, or the custodial parent’s home being located in a neighborhood with few children. Humphries v. Davis, No. 0775-98-2, 1998 Va. App. LEXIS 635, at *4-5 (Va. Ct. App. Dec. 8, 1998) (unpublished). 

In contrast, courts have found that the following conditions do indicate a material change in circumstances:

• Making and then suddenly canceling plans to relocate to another country at the detriment of causing an unstable living environment for the child. Laing v. Walker, No. 1693-94-3, 1995 Va. App. LEXIS 592, at *5 (Va. Ct. App. July 18, 1995) (unpublished). 
• Showing by the noncustodial parent can show that the remarriage of the noncustodial parent has provided for a more stable living environment, that the child has become increasingly withdrawn since living with custodial parent, and that the child preferred to live with the noncustodial parent. Turner v Turner, 3 Va. App. 31, 34, 348 S.E.2d 21, 23 (1986).
• Failure by the custodial parent to sufficiently support the children when their grades declined, when compared to the noncustodial parent who frequently met with the children’s teachers. Schoonover v. Schoonover, No. 0554-99-3, 1999 Va. App. LEXIS 518, at *5-6 (Va. Ct. App. Sept. 7, 1999) (unpublished). 

Without a material change in circumstances and evidence that a change in custody is in the best interest of the child, a court will not grant the petition to modify custody. 

-----
[1] Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983).
[2] Cintron v. Long, No. 2169-99-2, 2000 Va. App. LEXIS 487, at *11 (Va. Ct. App. July 5, 2000) (unpublished). See generally Mason v. Moon, 9 Va. App. 217, 220, 385 S.E.2d 242, 244 (1989) (noting that “in custody disputes between a natural parent and a nonparent, the law presumes the best interest of the child will be served when in the custody of the natural parent”).
[3] Id.
[4] Id.
[5] Bostick v. Bostick-Bennett, 23 Va. App. 527, 478 S.E.2d 319 (1996).
[6] Id. at 530, 478 S.E.2d at 320.
[7] Id. at 536, 478 S.E.2d at 323.
[8] Id. at 530, 478 S.E.2d at 320.
[9] Id. at 534, 478 S.E.2d at 322.
[10] Keel, 225 Va. at 612, 303 S.E.2d at 921.
[11] Id.
[12] Id.
[13] No. 1085-08-4, 2009 Va. App. LEXIS 402 (Va. Ct. App. Sept. 8, 2009) (unpublished).
[14] Id. at *5.
[15] Id.
[16] Id. at *6.

By: Audrey Henderson

There are two ways a court may change or modify a spousal support award: (1) where both parties agree to modify the amount, or (2) where a material change in circumstances or change in event happens that would involve a change in the spousal support amount. 

Agreement to Modify by the Parties

The most efficient way to change a spousal support order is by agreement of the parties because a court cannot unilaterally change an agreed upon spousal support award according to the terms or stipulation or contract signed by both of the parties.  See Blackburn v. Michael, 30 Va. App. 95, 100 (Va. Ct. App. 1999).

Material Change in Circumstances or Change in Event

However, if the parties cannot agree to a modification themselves, then upon the petition of either party, a “court may increase, decrease, or terminate the amount or duration” of any spousal support using the factors mentioned in my blog post How Do I Calculate the Amount of Spousal Support I owe or that is Owed to Me?  Va. Code Ann. § 20-109(B).  See also Thomas v. Thomas, 217 Va. 502, 505 (1976) (“where changed circumstances are demonstrated,” either spouse can petition for an increase, decrease, or termination of spousal support).  The court may make these changes if (1) there has been a material change in the circumstances for either of the parties, or (2) if an event the court anticipated during the duration of the award did not in fact happen.  Id. 

The party moving for a modification of spousal support has additional burdens and thresholds to overcome.  He or she must prove “both a material change in circumstances and that this change warrants a modification of support.  Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605 (Va. Ct. App. 1989).  The material change in a spouse’s circumstance must occur after the court’s award decree.  Hiner v. Hadeed, 15 Va. App. 575, 577 (Va. Ct. App. 1993).  The change in circumstances that allow a court to modify the spousal support must be financial and economic ones.  Hollowell v. Hollowell, 6 Va. App. 417, 419 (Va. Ct. App. 1988).

For example, the court in Reece v. Reece granted the husband’s request for a decrease in spousal support because he “proved that his financial circumstances had materially changed . . . after he involuntarily lost his job” as opposed to voluntarily leaving his job.  Reece v. Reece, 22 Va. App. 368, 373 (Va. Ct. App. 1996).  Additionally, there was no evidence that the husband refused a comparable employment opportunity that would “deliberately minimized his income for the purpose of reducing his ability to support [his] wife.”  Id. at 374-75. 

But, simply losing your job is not necessarily enough to secure a reduction in spousal support.  For example, in Smull, the husband was working full time at a corporation when the corporation lost a contract.  Smull v. Smull, 45 Va. Cir. 336, 336 (Va. Cir. Ct. 1998).  The husband was involuntarily placed on part time duty with the corporation.  Id.  He then decided to begin a new career that paid much lower than his corporate job.  Id.  Subsequently, the court denied his request to decrease his spousal support payments reasoning that his inability to pay was due to his own negligence of not securing a comparable job that had the same earning capacity as his corporation job.  Id. at 337.               

Circumstances that May Terminate Spousal Support

Spousal support may not last forever.  In fact, there are three common instances that usually end spousal support.

1.     Habitual Cohabitation

If a spouse whom is receiving spousal support and has been habitually cohabitating with another person in a relationship that is analogous to a marriage for one year or more, the other spouse can petition the spousal support.  Va. Code Ann. § 20-109(A).  The court must terminate the spousal support in this situation unless the divorced parties had a stipulation or contract that said otherwise or unless the spouse receiving the spousal support proves by a preponderance of the evidence that the termination of the support would be unconscionable.  § 20-109(A)(i)-(ii).    

2.     Remarriage

Va. Code Ann. § 20-110 states that if the spouse receiving the spousal support remarries, then the spousal support must terminate the date of the new marriage.  The spouse receiving the support has an affirmative duty to notify the other spouse paying the support to cease payments.  Id.    

3.     Death

Unless the parties had some sort of stipulation or contract that stated otherwise, spousal support must terminate upon the death of either of the parties.  Va. Code Ann. § 20-109(D). 

By: Audrey Henderson

Formally known as “alimony,” when one spouse needs more financial support than the other, the spouse in need may petition the court for spousal support after the divorce complaint has been filed.  The traditional example is a stay-at-home mom who takes care of the kids while the dad leaves the home for a 9 to 5 office job.  Because mom’s job did not produce a financial income that she could rely upon after that marriage ended, courts allow mom (or the spouse in need of financial assistance) to file for spousal support.

When determining the amount of spousal support, the court evaluates all relevant evidence, which leads to a very fact specific inquiry.  Va. Code Ann. § 20-107.1(E).  In other words, every case will be different and the court will look at thirteen factors, but each factor may not be applicable in every case. 

Virginia Code § 20-107.1 lists thirteen factors that Virginia courts evaluate to determine spousal support.

1.     The obligation, needs and financial resources of the parties, including income from all pensions, profit sharing, or retirement places.  The Virginia State Bar states that the courts place much significance on the payor’s ability to pay the support and do not overweigh the payee’s need for the spousal support.

2.     The standard of living established during the marriage, and not the standard of living a spouse lives after the married dissolved.  See Furr v. Furr, 13 Va. App. 479 (Va. Ct. App. 1992) (the court increased the spousal support award for the wife, holding that the wife experienced a marked reduction in her standard of living due to a dramatic rise in living expenses after the divorce, but not necessarily due to the divorce itself).

3.     How long the marriage lasted.  The Virginia State Bar has stated that “[a] financially dependent spouse of a long-term marriage is more likely to receive an award of spousal support than one who has been in a short marriage.”  See also Keyser v. Keyser, 7 Va. App. 405 (Va. Ct. App. 1988) (finding that four years of marriage is considered a relatively short marriage and that having a relatively short marriage alone does not bar a spouse from rights and interests in the marital assets); Robinson v. Robinson, 45 Va. App. 682 (Va. Ct. App. 2005) (husband only paid spousal support for seventeen months because marriage lasted relatively short duration); Baer v. Baer, No. 2278-94-1, 1996 Va. App. LEXIS 73 (Va. Ct. App. Feb. 6, 1996) (holding that the short duration of a marriage is considered when applied with other spousal support factors, but cannot be the only factor to consider). 

4.     The age and physical and mental condition of the parties and any special circumstances of the family.  See Cooper v. Cooper, 4 Va. Cir. 154 (Va. Cir. Ct. 1984). (the court took into consideration that the wife had multiple sclerosis, was disabled, and received Social Security disability benefits and was unable to participate in gainful employment when ruling in favor of spousal support to the wife).

5.     The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home.  See Block v. Block, 2005 Va. App. LEXIS 82 (Va. Ct. App. Mar. 1, 2005) (“[t]he court particularly referenced the income and earning capacities of the parties . . . the special needs of the one child; and the decisions regarding employment” for the spousal support award).

6.     The contributions, monetary and nonmonetary, of each party to the well-being of the family.  See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court noted that while the husband provided almost all the monetary contributions, the wife provided a significant amount of nonmonetary contributions including the duties of homemaker, mother, and military officer’s wife).

7.     The property interests of the parties, both real and personal, tangible and intangible.  See Martin v. Martin, 2009 Va. App. LEXIS 80 (Va. Ct. App. Feb. 24, 2009) (holding that the trial court properly considered both real and personal property, tangible and intangible when ruling that it was not going to put the wife in a position of trying to sell the marital home for the purpose of having a lower mortgage payment).

8.     The provisions made with regard to the marital property under § 20-107.3

9.     The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity.  See Srinivasan v. Srinivasan, 10 Va. App. 728 (Va. Ct. App. 1990) (the court took note that the wife was capable of earning a certain amount per year, yet held that she was entitled to a reasonable time to secure employment, and thus was awarded spousal support). 

10.  The opportunity, ability, and/or the time and costs involved for a spouse to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability.  See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court awarded the wife spousal support by considering the wife’s limited opportunity to seek training and employment at the age of sixty-four).

11.  The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time.  See Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008) (the court took into consideration that both the husband and wife agreed that wife would leave workforce to take care of four children while he worked).

12.  The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party.  See Hicks v. Hicks, 2012 Va. Cir. LEXIS 80 (Va. Cir. Ct. June 13, 2012) (the court took into consideration that the husband financially supported the wife’s college education during the marriage and thus reduced the amount of spousal support given to her).

13.  Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties. 

In setting the spousal support amount, a court “a court must look to current circumstances and what the circumstances will be ‘within the immediate or reasonably foreseeable future,’ not to what may happen in the future.” Srinivasan v. Srinivasan, 10 Va. App. 728, 735 (Va. Ct. App. 1990) (quoting Young v. Young, 3 Va. App. 80, 81-82 (Va. App. Ct. 1986)).

These factors help to determine the nature, amount, and duration of the spousal support.  The court can order that the spousal support needs to be paid in periodic payments for a defined duration, in periodic payments for an undefined duration of time, in one lump sum, or a combination of any of these.  Va. Code. Ann. § 20-107.1(C). 

Stay tuned for my next blog post about how to change or modify the spousal support award due to a material change in circumstances.