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Child support is a monetary payment, usually to the parent with physical custody of the minor child/children, solely for the benefit of the minor child/children. Parents are required to support their minor children, including adopted and stepparent adopted children, and children conceived through the means of assisted reproduction -- but usually not including step-children and grandchildren.
Who Can File for Child Support?
The parent with physical custody of the child or children is entitled to receive child support payments from the other parent. In Virginia, you may file a petition with the local Juvenile & Domestic Relations (J&DR) Court or the Virginia Department of Child Support Enforcement (DCSE). In D.C., you may file a petition in Superior Court or the Child Support Services Division (CSSD).
When Can You Ask for Child Support?
In divorce proceedings, a settlement agreement typically covers child support payments. This is negotiated between the spouses and ratified as part of the divorce decree by the judge. If the spouses cannot settle on their own, the court will determine support. Outside of divorce, a custodial parent can file for support payments at any time before the child turns 18 (19 if s/he has not graduated from high school). Child support ends when the child marries, is emancipated, when the child reaches 18 years and is not enrolled as a full-time high school student, or if the child is 18 and in high school and turns 19 or graduates, whichever comes first.
What Is Included as "Income" for Child Support Calculations?
Section 20-108.2(C) of the Code of Virginia includes the following as "gross income" for determination of child support: salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, Social Security benefits (with exceptions), capital gains, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, spousal support, rental income, gifts, prizes or awards. Gross income does not include Temporary Assistance for Needy Families (TANF), auxiliary grants to the aged, blind and disabled, medical assistance, energy assistance, Supplemental Nutrition Assistance Program (SNAP) benefits (a.k.a. food stamps), employment services, child care, general relief, federal supplemental security income benefits, child support received, or secondary employment income for the purpose of payment of child support arrearages.
How Is the Child Support Amount Calculated?
Child support payments can be negotiated between the parties outside of court. However, if the parents cannot agree there is a hearing to determine how much the non-custodial parent must pay. The judge or magistrate hears evidence on the amount of each parent's income as a percentage of the total income between them, then applies those percentages to the child support table in Section 20-108.2 of the Virginia Code (Section 16-916.01 of the D.C. Code). For example, if the parents' combined income is $9,600, the amount of support one child receives is $997, and if non-custodial parent's income is 65% of both parents' total income, the support payment is $648. The court may decide to deviate from the guidelines if it finds that certain mitigating factors are present. These factors are listed in Section 20-108.1(B) of the Virginia Code (Section 16-916.01 of the D.C. Code).
The District of Columbia has its own set of support guidelines at Section 16-916.01 of the D.C. Code, which are published on the website of the Office of the Attorney General.
A Note About Imputing Income
Under Section 20-108.1(B)(3) of the Code of Virginia and Section 16-916.01(d)(10) of the D.C. Code, a court may impute income on a non-custodial parent if it finds that he or she was "voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available." This means that a parent may not purposely take a lower-paying job or unemployment just to avoid paying their fair share of child support, otherwise the judge may apply the parent's earning potential to the payment.
Can a Child Support Order Be Changed?
Either party can petition the court to modify an existing child support order. The petitioner must show that there has been a "material change in circumstances" to justify a modification in child support. A change in circumstances is an event or condition that substantially alters the earning potential or economic conditions of one or both of the parties. Examples include a substantial change in income from a promotion or unintended job loss, illness or disability of a family member, remarriage, and foreclosure.
What Happens If You Do Not Pay Child Support?
If a parent fails to pay child support, the amount owed will accrue until it is paid up. The custodial parent can file a motion in the local court or DCSE/CSSD to force payment, which can be enforced by a variety of means, including wage garnishment, driver's license suspension, and even imprisonment.
If you need help in your child support case, call us for a consultation at (571) 393-1236, or send us an e-mail.
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