6.8 Child Support

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

6.8 CHILD SUPPORT

6.801 In General.

The Virginia Code uses a mathematical formula to arrive at a presumptively correct child support amount, using variables such as party incomes, health insurance costs, reasonable work-related day care expenses, and the custodial schedule. ³⁷⁹² The court may deviate from the presumptive amount, awarding more or less than the guideline indicates, but must make written findings that the application of the guideline would be unjust or inappropriate in a given case, making reference to "deviation factors" set forth in Virginia Code section 20-108.1.

When a court is requested to determine child support in a divorce context, the court must first make a determination of equitable distribution, spousal support, and custody. ³⁷⁹³ Once the parties' incomes have been adjusted to account for the payment of spousal support, child support is determined. Again, when the court applies the mathematical guidelines to determine the amount of child support owed, this amount is presumed to be the correct amount of child support to be awarded by the court. ³⁷⁹⁴ An award of child support becomes a judgment by operation of law as the child support payments become due and payable. ³⁷⁹⁵ Pursuant to section 63.2-1924.1 of the Virginia Code, all child support orders must include a provision for health care coverage of dependent children. The costs of health care coverage for the parties' children now include vision care and dental care coverage that are being paid by a parent or that parent's spouse. ³⁷⁹⁶

6.802 Pleadings.

There are no special rules regarding the pleading of factual allegations concerning child support. The complaint for divorce should allege that the parties have minor children whose support is to be determined pursuant to the statutory guidelines contained in section 20-108.2 of the Virginia Code. The complaint for divorce should contain the names and ages of any minor children.

Aside from the factual allegations in the complaint for divorce, it is important to specifically request an award of temporary and permanent child support in the prayer for relief. Counsel may not rely on the general prayer for relief "for such other and further relief as to equity may seem meet and the nature of [the] case may require." ³⁷⁹⁷

6.803 Persons Who Must Pay Child Support.

The duty to support a child is owed by both parents. This duty applies to parents by birth and parents by adoption. ³⁷⁹⁸

6.804 Duration of Child Support Obligation.

Child support continues until a child turns 18 years of age, although child support may be ordered to continue to be paid for any child over the age of 18 who 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 that child reaches the age of 19 or graduates from high school, whichever comes first. ³⁷⁹⁹ The court may also order that support be paid or continue to be paid for any child over the age of 18 who is (i) severely and permanently mentally or physically disabled and the disability existed before the child reached the age of 18; (ii) unable to live independently and support himself or herself; and (iii) residing in the home of the parent seeking or receiving child support. ³⁸⁰⁰

6.805 Child Support Guidelines.

A. In General.

In response to requirements of the federal Child Support Enforcement Amendments of 1984, ³⁸⁰¹ Virginia established child support guidelines. ³⁸⁰² The child support guidelines scheme requires the application of section 20-108.1 of the Virginia Code together with section 20-108.2 of the Virginia Code. Section 20-108.2 contains the mathematical guidelines that produce a presumptively correct amount for a child support award. The presumptive amount of guideline child support can be rebutted by consideration of the factors set forth in section 20-108.1(B) of the Virginia Code. A support order entered by the court should be retroactive to the date when the initial pleading was filed if due diligence was exercised in serving the petition. ³⁸⁰³

B. Statutory Minimum.

Section 20-108.2(B) of the Virginia Code provides that if the sole custody child support obligation is less than the statutory minimum per month, there will be a presumptive minimum child support obligation. When the obligor's gross income is less than 150 percent of the federal poverty level, the court may set an obligation below the presumptive statutory minimum if the reduction does not create or reduce a child support obligation to an amount that seriously impairs the custodial parent's ability to maintain minimal adequate housing and provide other basic necessities for the child.

C. Rebutting the Presumptive Amount.

Section 20-108.2 of the Virginia Code contains mathematical guidelines to determine the amount of child support owed. The amount of the award that results from the application of the guidelines is presumed to be the correct amount of child support to be awarded. ³⁸⁰⁴ To rebut the presumptively correct amount of child support determined under section 20-108.2(B) of the Virginia Code, section 20-108.1(B) requires the court to consider the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:

1. Actual monetary support for other family members or former family members;

2. Arrangements regarding custody, 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 a custodial parent when a child is not in school, child care services are not available, and the cost of child care services are not included in the computation and provided further that any consideration of imputed income based on a change in a party's employment must be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party's earning potential; ³⁸⁰⁵

4. Any child care costs incurred on behalf of the child or children due to attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party's earning potential;

5. Debts of either party arising during the marriage for the child's benefit;

6. Direct payments ordered by the court for maintaining life insurance coverage, education expenses, or other court-ordered direct payments for the child's benefit;

7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode; ³⁸⁰⁶

8. The child's special needs resulting from any physical, emotional, or medical condition;

9. The child's independent financial resources;

10. The standard of living for the child or children established during the marriage;

11. Earning capacity, obligations, financial resources, and special needs of each parent;

12. Provisions made for the marital property under section 20-107.3 of the Virginia Code, where the property earns income or has an income-earning potential;

13. The tax consequences to the parties including claims for exemptions, child tax credits, and child care credits for dependent children; ³⁸⁰⁷

14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

15. Any other factors as are necessary to consider the equities for the parents and children.

If a party requests a deviation from the presumptive amount of child support, the court must make written findings that the application of the guidelines would be "unjust or inappropriate" in a particular case. Those findings must state the amount of support that would have been required under the guidelines, give a justification for varying from the guidelines, and note the basis for the adjustment. ³⁸⁰⁸

D. Definition of Gross Income.

1. In General.

The calculation of the guideline amount of child support is based on the parties' gross income. Section 20-108.2(C) of the Virginia Code defines gross income very broadly, wrapping in almost all conceivable forms of income:

"[G]ross income" means all income from all sources, and shall include, but not be limited to, 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.

2. Disability Insurance Benefits.

If a parent's gross income includes disability insurance benefits, it must also include any amounts paid to or for the child being supported and derived by the child from that parent's entitlement to disability insurance benefits. The derivative benefits are included in a parent's gross income and that parent is entitled to a credit against his or her ongoing basic child support obligation for these amounts. If the amount of the credit exceeds the parent's basic child support obligations, the credit may be used to reduce arrearages. ³⁸⁰⁹

3. Deductions for Business Expenses.

Gross income can be reduced for reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business. In addition, one-half of any self-employment tax paid shall be deducted from gross income. ³⁸¹⁰

4. Other Deductions from Gross Income.

Gross income does not include: (i) benefits from public assistance and social services programs, (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, if the payor obtained the income to discharge a child support arrearage established by an order and the payor is paying the...