Child Support Q&A
How is child support determined?
In addition to awarding spousal support the court can award child support. Child support is awarded at the pendente lite hearing and again at the final divorce hearing. The award can be changed later if there is proof of a material change in circumstances. In awarding child support, the court will first make a calculation based on the guidelines in Virginia Code §20-108.1 and §20-108.2. You can look up this chart in the Code yourself and try to calculate what your own child support requirements may look like. The numbers included in this chart are assumed to be accurate, unless there is proof that it is not appropriate under the specific circumstances.
Does my custody arrangement impact my child support obligation?
Yes. After the basic child support is determined, the amount of child support is calculated to include other costs with a formula based on the type of custody. When the court awards child support, the Court presents its findings – including the guideline calculations and any additions or subtractions that were considered in the final number.
What kinds of factors will the Court consider in making additions or subtractions to my child support obligation?
There are several reasons the court may change the basic amount of support from the guidelines – including the amount of support the parents provide for other family members, special needs or obligations, resources of each parent, and the parent’s tax consequences. The court will also consider the cost to the parent to visit the child if that parent only has visitation rights and debts that have arisen against a parent because of the child. In addition, the court considers the standards of living the child had during the marriage and considers education costs and costs if the child has special needs and if the child has their own money. If there is a large increase in money, for example from the sale of the home lived in during the marriage, or the property provides an income, the court takes the effect into consideration. In addition to these factors, the court can use any factors that it feels is necessary to make the decision – so that is a broad power that may come into play.
Is there a main factor the Court will consider?
Yes. When you look at the child support guidelines, you will immediately see that the main factor in determining child support is gross income.
What is “gross income?”
Gross income is all income from all sources. Sources include salaries, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, some social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes, awards or any other source of income.
Does gross income include everything?
No. Although it includes most forms of income, it does not include: benefits from public assistance and social services programs listed in Virginia Code Section §63.2-100, federal supplemental security income benefits, child support received or income which is used only to pay late child support and is known as “secondary employment income.” Secondary employment income includes income from an additional job, self-employment or overtime employment. And when the additional income stops, there is no material change in circumstances.
Why doesn’t the Court look at “secondary employment income?”
Secondary employment income is not considered because people would go get a second job in order to obtain money for child support and the second job would then increase their guidelines payments. This practice actually discouraged people from getting second jobs, and thus further discouraged people from paying their support. To eliminate this “Catch 22,” the legislature exempted the second job when it is used only to pay support.
Are there any deductions in calculating gross income?
Certain disability insurance benefits are calculated differently. For example, the insurance increase that a parent pays because of the child is calculated in gross income, but that amount can be credited to that parent’s child support payment. In addition, there are other expenses which can be deducted from gross income. These include reasonable business expenses from self-employment income, a partnership, or a closely-held business and one-half of any self-employment tax. Some support payments can also be deducted, depending upon the circumstances.
Are there any other costs that influence the amount of child support owed?
Yes. For example, the cost of health care coverage and the cost of employment-related childcare are added to the amount of child support owed. The health care coverage cost is the additional cost directly related to covering the child. The cost of employment-related childcare is the cost of providing quality care while the custodial parent is at work. At the request of the non-custodial parent, the court can require documentation showing the cost of the childcare and increase or decrease the child support amount. By the request of either parent, the court can take the impact the childcare costs have on the parent’s taxes into account and change the child support accordingly.
What if there are “out of pocket” medical costs—are these part of child support?
In addition to health care coverage, each parent is expected to pay a portion of all medical and dental expenses not reimbursed over $250 per year. The amount each parent pays is proportional to their gross income, but does not impact the amount of child support they are expected to pay. This is in addition to the monthly child support amount and the courts will automatically apply this after the amount of child support is calculated no matter the type of custody. If there is good cause or an agreement between the parents, the court will follow what was decided.
Once the total amount of child support is determined, who pays what to whom?
Once the court has determined the basic child support amount, either from the guidelines or through separate calculations, and the amounts of the other costs, the court will award support based on the type of custody. No matter the type of custody, the total obligation is the monthly basic child support obligation plus the costs for health care coverage and the work-related child-care costs. If the child is a recipient of Medicaid or the Family Access to Medical Insurance Security Plan, then cash medical support is added to the obligation. The total includes the basic obligation and costs for both parents.
To calculate the monthly obligation of each parent, each parent’s contribution to the total monthly combined gross income, also known as the income share, is multiplied by the total monthly child support obligation. This means that if each parent contributes 50% of the income share, then each parent will pay 50% of the total monthly child support obligation. Similarly, if one parent contributes 40% and the other 60% of the income share, then the parents would pay 40% and 60% respectively of the total monthly child support obligation.
You said child support is impacted by custody arrangements—so what are the different types of custody arrangements?
As stated earlier, the Virginia Code only defines two types of custody; sole custody and joint custody. “Sole Custody” is self-explanatory—it means that on person retains sole responsibility for the care and control of a child and has primary decision-making authority for that child. “Joint Custody,” on the other hand, encompasses multiple arrangements, including Shared, Split, or Divided Custody. Each of these terms is a type of “Joint Custody” where both parents retain some responsibility and decision-making authority in one form or another. Finally, the court may award limited or extensive visitation rights to a non-custodial parent.
What is the child support impact if I have a sole custody arrangement?
For sole custody arrangements, the non-custodial parent pays the custodial parent his/her share. However, the amount the noncustodial parent is responsible for may be reduced by the cost of the health care coverage when it is paid by the noncustodial parent.
What is the child support impact if I have a split custody arrangement?
Split custody only occurs in families that have two or more children. For split custody, each parent has custody of at least one of the children from the marriage. To calculate the amount of child support owed, the amount of child support is calculated for each child with the formula above. Each parent is responsible for their share of the child support for all the children. Once both parents’ responsibilities are calculated for all the children, the amount owed is the difference between the amounts the two parents are responsible for. The difference is what the parent owing the larger amount pays to the parent owing the smaller amount.
What is the child support impact if I have a shared or divided custody arrangement?
Shared custody means that the parents willingly share child care responsibilities and decisions at all times, regardless of which parent may have physical custody at any one given time. Divided custody means a child lives alternatively with one parent and then the other for specific durations of time and during those durations, the parent with whom the child is residing retains responsibility and decision-making authority for the child.
Usually, these arrangements entail one parent having physical custody for more than 90 days in a year. If that is the case, that parent’s custody share can be calculated by using the formula described above, and then taking a proportion of that amount equivalent to the number of days the parent has the child dived by the number of days in the year (365).
What is the child support impact if I have an extensive visitation arrangement?
In the event that the court awards more than ninety (90) days per year of visitation to a non-custodial parent, the non-custodial parent’s child support obligation is calculated using the formula above and then taking a proportion of that amount equivalent to the number of days the parent has the child divided by the number of days in the year (365).
What is the child support impact if I have a limited visitation arrangement?
In the event the court awards less than ninety (90) days per year of visitation to a non-custodial parent, the non-custodial parent’s child support obligation is calculated using the formula above; however, he or she cannot then offset the days during which he or she has the child for visitation (as he or she can if the visitation arrangement is greater than ninety (90) days per year).
Why ninety (90) Days? If my visitation is less than ninety (90) days, aren’t I paying twice? That doesn’t seem fair…
We are often asked by the non-custodial parent who pays child support to the custodial parent, “Why don’t I get credit for the money I spend taking care of junior when he/she is with me?” This topic has been debated by the legislature for years. To address this, the General Assembly created the “90-day rule.” This rule gives credit to a non-custodial parent for expenses where the non-custodial parent has the child for more than 90 days. There is no real scientific reason why 90 days was picked. Like a lot of things in law, it is a number that came up as a compromise between the proponents and opponents of the legislation. Custodial parents say that the child support guidelines are set slightly lower than true child care costs with the fact in mind that non-custodial parents will be expending sums on the days they have visitation. Non-custodial parent advocates say that the guidelines are too high and don’t give them enough credit. So, while it is an arbitrary number, 90 days is the number upon which the majority agreed.
Are there any other considerations the Court will make when determining child support?
It is important to remember that the court can and will consider other issues when making these calculations. For example, the court will want to ensure that the amount of child support will allow the custodial parent to maintain minimum standards, giving that parent the ability to provide minimal adequate housing and other basic needs to protect the best interests of the child. If there is something unique about your child’s particular situation, a judge may take that factor into consideration in an overall calculation.