CHILD AND SPOUSAL SUPPORT
Each state has its own guidelines on how child support is handled. Virginia’s child support laws are covered under Virginia Code Section 20-108.2. The courts rely on a mathematical formula that is used to calculate specific child support payments. The formula will be used differently in every case, depending on the individual custody agreement. There are several different types of custody, which can include:
- Sole physical custody: Also called “primary physical custody.” Sole physical custody in Virginia means that the non-custodial parent has 89 or less 24-hour periods with the child each year.
- Shared physical custody: Shared physical custody means that each parent has at least 90 or more 24-hour periods with the child each year.
- Split physical custody: Where children are split between the two parents.
The Virginia state table outlines what a parent is responsible for paying at different family income levels for households who have up to six children. For example, if the combined family is over a certain amount that falls outside of the Virginia state table, support would be based on a percentage of income. Then you add items like work-related childcare expenses and health insurance.
Whatever the number is for the child support obligation will be apportioned between the parents based on each of their individual incomes. If one parent makes 70% of the entire family income, then he or she would be the one to pay 70% of the expenses for child support. Again, who makes the payment will depend on the arrangement for child custody.
Custody arrangements can impact these figures when there is a shared custody agreement. Each parent’s custodial share will impact the final figures. When custody is split, the court calculates the sole custody amount for each parent and then make adjustments from there.
It’s important to note that while there is a formula in place, the courts have the power to decrease or increase support as they see fit while taking into account the circumstances of the parents and the child. In such cases, the judge considers a variety of factors to determine whether to deviate from the child support guidelines and is required by law to state on the record why they are doing so.
Virginia law does not allow parents to waive child support completely though many parents in uncontested cases agree to other forms of payment such as sharing activities and expenses. However, if you go to court it is highly unlikely the court will do anything other than a straight monthly payment of child support.
Child support is always modifiable in Virginia until the child is emancipated. The courts recognize that situations change and there may need to be modifications made to the original support amount. Perhaps there is a drastic change in your financial situation, or your child is no longer in daycare, etc.
Additional Things To Consider
Child support is always modifiable by a court upon a material change in financial circumstances. Generally this can include significant changes in income, increases in health care and/or child care costs, changes in the custody arrangement, the birth of other children (provided you have another material changes at the same time), the emancipation of children and changes in spousal support payments.
A court order directing the payment of child support is enforceable by holding a parent in violation in contempt of court. A parent found in contempt can be ordered to pay support, attorneys’ fees and even go to jail in some cases.
The Virginia Supreme Court provides a standard worksheet to calculate child support. However, you should always consult with an attorney about child support as most will have standard computer software to accurately calculate the guidelines and review with you all your options.
Unlike child support in Virginia, there is no single universal formula applied statewide for determining spousal support. There are some guidelines in several counties, but it doesn’t mean they are binding in all courts. In addition, some of the established guidelines only apply to select circumstances, like cases where the spouses’ combined monthly income doesn’t exceed $10,000.
Spousal support cases can be complex in Virginia, and there has to a demonstrated disparity in income before most judges will award support at all. In other words, there is no guarantee that the court will award support in every case. Spousal support is also the hardest issue in domestic relations cases to predict so having an experience attorney who has litigated spousal support cases is essential to getting the best outcome possible.
Spousal Support Guidelines in Virginia
Virginia law has spousal support guidelines, a statewide formula for calculating a presumptive amount of alimony. In fact, there are also some local guidelines that are applicable in divorce cases, but many courts are free to ignore them completely.
The main purpose of those local guidelines was to establish the so-called “pendente lite” spousal support, which is alimony to be paid until the divorce is finalized. Although these local alimony guidelines are not binding on circuit courts in Virginia, some courts consider these rules as a starting point in determining a proper spousal support amount.
So, if you are getting divorced in Virginia, speak with a family law attorney to find out which local guidelines are applicable in our local courts. In some cases, courts may award lump sum spousal support (or, in other words, an alimony award made in one payment).
However, the pendente lite formula does not take into account the new changes in the U.S. federal tax law since the Tax Cuts and Jobs Act of 2017 took effect. Therefore, if the pendente lite calculation is used in your divorce case, you may want to consider how taxes might affect the alimony payments in your particular case.
When it comes to determining alimony in Virginia, there are many things to know about spousal support, including types of support, situations in which support is not awarded, and which factors terminate alimony payments, among others.
The child support guidelines are calculated taking into consideration a custodial parent’s child care expenses. However the amount for child care cannot exceed the cost of quality care from a license source (i.e. a nanny or au pair). It is important to note that where the non-custodial parent is available to provide child care the court will consider this fact in determining how to calculate the guidelines. Child support payments also take into consideration the costs for health insurance and dental insurance coverage directly allocable to the child or children over and above the costs for a family or individual plan.
The child support guidelines will also take into consideration a child or children of either parent from another relationship unless the court finds that this would be inappropriate in some way. If the court takes the other child or children into consideration, the guideline calculation can be greatly affected. Our experienced Leesburg child custody attorneys can help.
The court will consider the custodial arrangement between the parents in calculating the guideline support amount.
Determining Factors in Spousal Support
Virginia Code §20-107.1(E) says that when deciding whether or not to award spousal support, the court can consider all contributing factors to why the parties are seeking a dissolution. This means factors like adultery could actually result in the court barring you from spousal support entirely.
- Standard of living establishing during the course of the marriage;
- How long the marriage lasted;
- Contributions, both financial and non-financial, of each party toward the family’s well-being;
- Needs, obligations, and resources of each party, which includes, but is not limited to, the income from all profit sharing, retirement, or pension plans;
- Each party’s earning capacity and present employment opportunities;
- Both parties’ interests, including real and personal, tangible and intangible;
- The extent that either party contributed to education, training, profession, etc. of the other party;
- Decisions and agreements made during the marriage on parenting arrangements, career, education, and what effect they have on present and future earning potential;
- What opportunities exist and the ability of a party to obtain the necessary education, training, and employment to learn the skills necessary to increase their earning ability; and
- Any other factors, like tax consequences for each party and any other important factors that may have contributed to the demise of the marriages.
If the court makes an award, the judge can choose that it be made on a temporary basis, a permanent basis, or even a combination of both. It can be in the form of periodic payments or a lump sum.
Modifying or Terminating Spousal Support Payments
Once your final divorce order is signed, you might assume that you won’t have any further ties with your ex. However, even in the absence of having children together, an award of spousal support can bind spouses together long after the divorce is finalized. And, as time passes, circumstances can change that may lead to one party wanting to go back and have the spousal support award modified.
Typically, the person who wants to modify the award is the spouse that was ordered to pay alimony. A material change in circumstances, like the loss of their job or a major illness, is the reason that the modification is being requested.
Earlier in 2018, a new Virginia law took effect that actually makes it easier for a party to get a spousal support award modified.
Alimony Awards that are Silent on Modification
Prior to the new law, in a divorce decree or separation agreement that had no specific wording regarding modification, the award was permanent and was not eligible for modification. Unfortunately, many couples had signed alimony agreements assuming that it could be modified at a later point in time only to discover that it couldn’t since the agreement did not address the subject directly.
Now, if a couple signs a divorce settlement agreement, Virginia law requires there be specific language included if the spousal support cannot be modified at any point in time. This means that if there is no language included about whether or not it can be modified, the court will now assume it can be modified. This change applies to all agreements that are signed after July 1, 2018.
Modifying Alimony Due to Retirement
The new law also allows courts to consider retirement as a qualifying material change to modify an alimony award. The court is required to look at a variety of factors, including how retirement affects both parties’ incomes, the health and age of both parties, and what assets and property each has.
Modifying Alimony with No End Date versus Defined Duration
When modifying alimony in cases with a defined duration, the overall length of support cannot be extended. The court can opt to decrease, increase, or terminate alimony. One side needs to prove a material change in circumstances happened that neither party anticipated when alimony was first awarded, or an event that the court anticipated would happen did not end up occurring, which was due to no fault of either person.
Modifying spousal support awards that are permanent can be more complex. The statute says the court has authority to decrease, increase, or terminate alimony if the “circumstances make it proper.” This means there is no requirement for a specific event to happen before you can request a modification. This may sound more desirable, but it means the judge has more discretion, which may or may not work in your favor.
Permanent Spousal Support
Permanent alimony is not truly permanent in that you will receive it forever, however it can last the rest of your life if not sooner modified or terminated. There are some conditions that are attached to permanent spousal support that would cause the support to end. These include:
- Recipient ex-spouse remarries
- Either ex-spouse passes away
- Recipient ex-spouse lives with someone in a romantic relationship for a year or more (not a roommate situation)
Lump Sum Spousal Support
In some cases, there may be a lump sum alimony award. This can benefit both parties as the payment can help the recipient get on their feet quickly and the other party doesn’t have a monthly payment to deal with. Sometimes they may negotiate the payment down by doing the lump sum. For example, maybe the award is $75,000 over the term of the award but it can be negotiated to an up-front payment of $65,000 instead.
Periodic Spousal Support / Defined Duration Support
Alimony can be for a specified amount of time as well. A common amount is for half the length of marriage, especially for marriages that lasted less than 20 years. There is no set rule for half the marriage length, but that is a common amount some couples agree on. Periodic payments can be paid monthly or on whatever term you agree to (weekly, annually, etc.). The amount can remain the same or vary either up or down at some point.
Rehabilitative Spousal Support
Another option for spousal support is to set it up to help reach a specific goal. Perhaps one spouse didn’t finish college because they dropped out to get married. Now that the marriage is breaking up, the spouse wants to go back and finish, which can also increase their earning potential. Perhaps the spousal support award helps the recipient get back on their feet while allowing them to finish their college degree. This type of support is often the easiest to negotiate because the recipient is going back to school which will help him or her increase their earning potential and there would be less of a need for spousal support.