By: Michael Lehr, Esq.
In Virginia, child support payments are determined in large part upon a mathematical formula. This formula, known as the “guidelines,” determines the child support payment using the gross income of both parents, the number of children in the family, health insurance costs for the children, and work-related childcare expenses. Further, these payments are based upon the structure with which the parents share custody:
- Sole Custody Support (where the non-custodial parent has less than 90 days per year custody);
- Split Custody Support (where each parent has charge of a child); or
- Shared Custody Support (where the non-custodial parent has more than 90 days per year custody). See Va. Code § 20-108.2.
Once the court calculates that monthly payment, it will typically not change that amount unless it later determines that there has been “material change in circumstances” of either parent. However, this material change cannot be one which the paying parent imposes upon him/herself—instead, the material change must be involuntary. The most common example of an involuntary material change, which may warrant the modification of a child support obligation, is the loss of income or a job.
The COVID-19 global pandemic has caused tens of millions of Americans to file for unemployment. Many of these unemployment filings are in direct response to furloughs or layoffs stemming from the virus. While each court case is unique, a court could likely find that a COVID-19 related termination or layoff qualifies as an involuntary material change warranting a change in support. Importantly though, this modification is not automatic, and your job loss does not relieve you of your obligations under your current child support order until that order has changed.
When necessary, parents typically utilize one of two avenues to modify child support arrangements. First, you can file a motion with the court and move the court to enter a new, reduced support order. Second, you can settle with the other parent either on your own or through mediation, and agree on an appropriate modification. However, be cautious because your original support obligation remains in place until the date you get a newly signed support order from the court. Also, every day that goes by, you don’t file to modify support, you are losing possible credit for over-payment. The court in support modification cases can award retroactive credit for over-payment, but only from the date the parent receiving support is served with the lawsuit to modify support. Should settlement discussions breakdown, you may have limited the retroactive credit more than you needed to by waiting too long.
Finally, on March 16, 2020, the Supreme Court of Virginia suspended nearly all civil cases pending before Virginia courts. This would appear to include hearings on motions to modify child support. As a result, if you believe you have suffered an involuntary material change in circumstances, you should file the motion to modify support as quickly as possible.
In the interim, you must continue paying the support obligation as it stands. Then, request the court apply the modification retroactively to the date of the material change if it doesn’t do so on its own.