The Commonwealth of Virginia recognizes that every parent has an obligation to support their child. Under current laws, this obligation of support may take the form of monthly payments made to the child’s custodial guardian.
These payments are often referred to as “child support.”
However, some parents fail to fully understand their rights and responsibilities when it comes to child support payments.
Sometimes, this means that children don’t receive the full benefits they’re entitled to. Other times, parents are forced to pay way more than they can afford.
For this reason, parents should always educate themselves about the child support process before making any lasting decisions in their case.
In this guide, we’ll cover everything you need to know about Virginia’s child support laws.
We’ll also answer a few common questions about child support orders in general.
Virginia Child Support Basics
In Virginia, parents are legally obligated to support their children, regardless of their circumstances.
This support obligation is most commonly done through child support payments.
Exactly who must pay child support, and how much they must pay, will be based on several factors, including custody arrangements, total costs of living and for child care, and the relative income of both parties.
The factors used to determine support payments are laid out in the Virginia Code.
Most commonly, a parent who doesn’t have primary custody of a child will have to make support payments to the parent who cares for a child all or most of the time.
This is because the law assumes that a custodial parent (or guardian) is already paying their “fair share” of the expense in the course of caring for the child on a daily basis.
By dividing the payments this way, the hope is that the financial expense of raising a child is shared fairly between parents, even if one is primarily responsible for caring for a child.
Essentially, the purpose of these laws is to help the child grow up in an economic situation similar to what they’d have if their parents were still together.
Can I file for child support?
As a parent or guardian, you may apply for child support in any of the following situations:
- You are the legal parent or guardian of the child and have sole custody over them.
- You are the legal parent or guardian of the child and have joint custody with the other parent.
- You are a person with a “legitimate interest” in the child, such as a relative or grandparent.
- Your child is over 18, but you had a child support order established before the child turned 18 and are owed past due for that support.
There are two general paths you can follow to receive support outside of the courts, both of which go through Virginia’s social services department.
In the first path, Virginia’s social services department can issue child support orders on its own, without the intervention of the court.
In this scenario, you simply have to submit an application through their Division for Child Support Enforcement (DCSE).
Alternatively, the DCSE may open child support cases automatically for certain individuals, such as those who receive Temporary Assistance for Needy Families benefits.
In this scenario, a case worker will likely contact you with details about the support payments.
How to Apply for Child Support in Virginia
As mentioned, you don’t always have to go to court to obtain a child support order.
In most cases, all you have to do is file an application for child support with Virginia’s DCSE.
Think of court-mandated child support as simply an extra-reinforcement of the DCSE’s powers.
Most child support cases that enter the court system do so because one parent has violated, or fundamentally disagrees with, the DCSE’s child support order.
When applying with the DCSE, you will need the following information:
- A photo ID.
- Your Social Security Number.
- Your Driver’s License Number.
- The SSN of each child you are applying on behalf of.
- A birth certificate for each child you are applying on behalf of.
- A signed, notarized Acknowledgment of Paternity (if one is available).
- Copies of previous protective, visitation, child support, and child custody orders.
- The full legal name, date of birth, SSN, addresses, employment, pay stub, list of assets, etc. of both the mother and father of the children.
The DCSE will also ask you a few simple questions, such as:
- Whether or not you are in the process of getting a divorce.
- Whether or not you are receiving any government assistance for you and/or your child.
- Whether or not you receive child support through another state or a collection agency.
As another very important note, Virginia’s child support guidelines create a “rebuttable presumption” in any judicial or administrative proceeding regarding child support payments.
This essentially means that every agency will assume the award set out in the Virginia child support guidelines is the correct amount.
Only a ruling in a Virginia Family and Domestic Relations Court can overturn this presumption.
In this way, either parent can challenge the presumed amount laid out in Virginia’s child support guidelines.
If you feel the trial court failed to take into account all of the factors outlined above, you may also appeal their decision.
When do the support payments start?
Generally, the written child support order will list a date for when the first payment is due.
However, in some cases the court may determine that a support obligation started at an earlier date.
This might lead to “back dated” or already accrued child support.
For example, if you filed a claim two months before the judge finalizes the order, the order may also require that the non-custodial parent pay additional support for those two months.
As one final variation, the custodial parent can also petition the court for a pendente lite award.
In this case, the court might require that the non-custodial parent pay support while the actual child support trial is pending.
How Do I Calculate Child Support in Virginia?
Support awards are calculated using the child support guidelines outlined in the Virginia Code.
You should use a worksheet in conjunction with these guidelines to calculate the amount you might have to pay.
As you can see in the guidelines, the actual support the non-custodial parent pays will depend on several factors, including:
- The number of children that need support.
- Each parent’s income (calculated as a percentage of their combined net income).
- Any relevant custody arrangements.
Keep in mind that, technically, each parent will have to pay his or her fair share of the total amount.
How the amount is split will depend mainly on the custody arrangement:
- If you have a sole custody arrangement, then the child support owed is based on the proportion of what each parent contributes to the combined income.
- If you have a split custody arrangement (i.e. one child lives with one parent and the other child lives with the other parent), then you will do the same calculation as if you had a sole custody arrangement. Then, split the difference between the custodial parent of one child and the custodial parent of the other child.
- Finally, if you have a shared custody arrangement, the support amount is based on the percentage of days out of each year the child is with each parent.
Is my new spouse’s income considered in my child support calculation?
A common question people ask about child support is whether, after a parent remarries, the new spouse’s income is factored into the child support calculation.
In general, the answer is no.
The court only considers the income of the child’s legal parents when determining the child support award.
What Happens When a Parent Tries to Cheat the System?
Some parents, still heated from their divorce proceedings, will deliberately act to lower their income in the hope that it will lower their child support obligation.
In a way, they try to cheat the system for their own benefit.
What these individuals don’t realize is that a court may still attribute income to a parent who is voluntarily unemployed or underemployed.
To do this, they basically decide what that parent could earn, and go from there.
Put more simply, a court may treat the parent as if his or her income never changed.
To see this process in action, consider the following example:
After his divorce, Fred was making $50,000 a year, and was ordered to pay $7,000 in child support.
To get around this order, Fred decided that he would quit his job and live off his unemployment benefits.
Because Fred voluntary quit his job, a court will likely (absent some extenuating circumstance, such as a medical problem) impute his income.
This means that for the sake of child support calculationsthe court will pretend he is still making $50,000 per year.
In this situation, he would still have to pay his $7,000 obligation.
If, however, the non-custodial parent can prove that they changed jobs in good faith, the court likely won’t force them to pay the previous amount.
For example, if they changed jobs for better benefits, or to be physically closer to their kids, the court likely won’t punish them.
Virginia Child Support FAQ
How long do I have to pay child support?
Generally, Virginia child support orders terminate when a child reaches the age of 18, or is legally emancipated. However, there is one exception.
If the child: (1) reaches the age of 18, (2) is still in high school, (3) is not self-supporting, and (4) is still living in the home of the custodial parent, then that parent can still seek child support.
In this case, the support payments will continue until the child reaches the age of 19 or graduates from high school, whichever comes first.
The court also has the discretion to continue support beyond the age of 18 if the child is severely and permanently mentally or physically disabled.
In this case, the child must not live independently, and must reside in the home of the custodial parent.
Can I have my child support obligations lowered?
As mentioned earlier in this article, the non-custodial parent can petition the court to have their child support obligations lowered.
To do so, you must show the material changes of circumstance that justify this reduction.
Further, you must show that your lack of ability to pay is not due to a voluntary act on your part, such as quitting your job or spending all your money on a vacation the week before the payments are due.
Finally, this “material change” must be something new which did not exist when child support was originally determined.
Common material changes that hold up in court include:
- Medical Emergencies.
- Instances where the custodial parent’s financial situation drastically improves or changes.
- A change in the Virginia child support guidelines.
Can I have my child support award increased?
Yes. In fact, simply showing that the non-custodial parent’s income increased is sufficient evidence for an increased award, as in the case of Conway v. Conway.
The logic is that any increase in salary would have been shared had the family unit remained intact.
Therefore, the child should still benefit from the non-custodial parent’s raise.
Can the other parent and I agree to modify our Virginia child support agreement?
Yes, but you must have court approval.
Generally, courts will always strongly prefer that any adjustments to child support payments be made through the courts themselves, and not by written agreement of parents or guardians.
However, parents may enter into an agreement that modifies child support obligations, as long as the agreement is reviewed and approved by a judge.
This was determined by the Virginia Court of Appeals in 2001.
This means that any such agreement must meet all the legal requirements that a court order would, such as that the change is based on a change in circumstance and is in the best interest of the child.
Because this is a tricky area, you should either directly petition the court for any modifications in child support, or consult with an attorney before trying to come to an agreement.
What happens if I overpay child support?
If you ever overpay in child support, you are not guaranteed a credit for that support.
In fact, Virginia courts have specifically held that overpayments by a parent cannot be credited towards future child support payments.
In a way similar to the previous section, these overpayments are considered gifts, and do not count towards future payments.
What happens if I don’t pay my child support obligation?
The consequences for not paying child support can be steep.
In Virginia, those who fail to pay are guilty of a Class U misdemeanor.
This act is punishable by:
“A fine of up to $500, confinement in jail for up to one year, or both, or [placed] on work release employment for a period between 90 days and 12 months.”Virginia Code § 20-61
Alternatively, the court might instead require that the non-payer pay a fine to the custodial parent or guardian of an amount up to $1,000.
This amount is in addition to any pending child support payments that the non-custodial parent has yet to pay.
The Commonwealth of Virginia protects the best interests of children.
Non-custodial parents are under a legal obligation to provide support for their child, even if the child does not live under their roof.
The child support process can be daunting. However, you don’t have to go through it alone.
An experienced family law attorney can help you through the process, as well as make sure you receive the payments you’re due.
Editor’s Note: This article is for information purposes only, and our firm is not currently taking on new clients for independent child support cases. If you’d like to learn more about why, please read our article “Why Smart Parents Make Their Own Child Support Agreements.”