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.
- Actual monetary support for other family members or former family members;
- Arrangements regarding custody of the children, including cost of visitation travel;
- 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;
- 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;
- Debts of either party arising during the marriage for the benefit of the child;
- 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;
- Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
- Any special needs of a child resulting from any physical, emotional, or medical condition;
- Independent financial resources of the child or children;
- Standard of living for the children or children established during the marriage;
- Earning capacity, obligations, financial resources, and special needs of each parent;
- Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
- Tax consequences to the parties including claims for exemption, child tax credit, and child care credit for dependent children;
- A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
- 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?”