11.6 Child Support

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

11.6 CHILD SUPPORT

11.601 Court's Authority. The Juvenile and Domestic Relations District Court has authority to enter child support awards in any situation. The Circuit Courts in Virginia have authority to order child support incident to divorce proceedings or proceedings for separate maintenance.

After the entry of "a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance," the court may further provide for the custody, visitation, and support of the parties' minor children. ⁴⁶

Courts have the authority to order child support until the child reaches 18 and can order support after 18 if the child is

(i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of nineteen or graduates from high school, whichever first occurs. The court may also order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii); (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support. In addition, the court may confirm a stipulation or agreement of the parties which extends a support obligation beyond when it would otherwise terminate as provided by law. The court shall have no authority to decree support of children payable by the estate of a deceased party. The court may make such further decree as it shall deem expedient concerning support of the minor children, including an order that either party or both parties provide health care coverage or cash medical support, or both. ⁴⁷

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[A]ny parent who deserts or willfully neglects or refuses or fails to provide for the support and maintenance of his or her child under the age of eighteen years of age, or child of whatever age who is crippled or otherwise incapacitated from earning a living, the spouse, child or children being then and there in necessitous circumstances, shall be guilty of a misdemeanor. ⁴⁸

11.602 Guidelines. Va. Code § 20-108.2 sets out income-based guidelines. Support is determined according to the parties' combined monthly gross income and the number of children for which the parents share joint legal responsibility and for whom support is being sought. ⁴⁹ The guidelines also consider necessary childcare costs and the cost to carry children on health insurance. ⁵⁰

A. Gross Income. Gross income is defined as "all income from all sources" including "income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits . . ., workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, spousal support, rental income, gifts, prizes or awards." ⁵¹

By statute, certain forms of income are explicitly excluded from the above definition of gross income. ⁵² These are: (i) benefits from public assistance and social services programs as defined in Va. Code § 63.2-100; (ii) federal supplemental security income benefits; (iii) child support received; or (iv) income received by the payor from secondary employment income not previously included in "gross income," where the payor obtained the income to discharge a child support arrearage established by a court or administrative order and the payor is paying the arrearage pursuant to the order. "Secondary employment income" includes but is not limited to income from an additional job, self-employment, or overtime employment. The cessation of that secondary income upon the payment of the arrearage will not be the basis for a material change in circumstances upon which a modification of child support may be based.

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11.603 Deviation from the Guidelines. There is a rebuttable presumption that the Va. Code § 20-108.2 guideline amount is the correct amount of child support to be awarded. ⁵³

In order to rebut this presumption, the court must make written findings, based on the factors enumerated in Va. Code § 20-108.1, justifying why the application of the guidelines would be unjust or inappropriate. ⁵⁴

11.604 Va. Code § 20-108.1(B) Factors. These factors include:

1.	Actual monetary support for other family members or former family members;
2.	Arrangements regarding custody of the children, including the cost of visitation travel;
3.	Imputed income to a party who is voluntarily unemployed or voluntarily under-employed, provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available, and the cost of those child care services are not included in the computation. Any consideration of imputed income based on a change in a party's employment must be evaluated with consideration of the good faith

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