As always, before reading today's blog post please review my disclaimer by clicking on the link above or by following this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Having practiced child support law for a few years now, I'm always amazed at the ideas clients have about child support when they walk in the door. When I dig deeper, I discover that some of these ideas have a good basis but have just been taken too far, while others are driven by the false claims of a desperate opponent. Regardless of the root cause, however, there are many myths floating out there about child support law, and I hope to address some of them today.
This blog post will take a "myth"/"reality" format. I will present a common child support myth I encounter, then I will present a 1-2 sentence summary of the reality. I will follow that up with a more detailed explanation, but if you're reading this post in a hurry, the key facts will be in those 1-2 sentence summaries.
Myth: If I make too much money and the non-custodial parent makes too little, I could end up paying him, so I shouldn't take the risk and seek child support.
Reality: There is no situation in which a custodial parent has to pay monthly child support to a non-custodial parent. In fact, there's a minimum amount the non-custodial parent must pay regardless of the parents' relative incomes.
This myth almost always comes from a non-custodial parent trying to intimidate a custodial parent, but it's just not true. Child support is owed by the non-custodial parent to the custodial parent, never the other way around. In fact, there is a minimum child support obligation of $68 per month, although the court can waive that in certain instances. There are, however, some important things to understand.
First, under child support law, "custodial parent" has a specific definition - a parent who has custody of the kid(s) for 276 or more days per year (a day generally being defined as a 24 hour period). If both parents have the kids for more than 90 days, you have what is called a "shared custody" arrangement for child support purposes, and then it is possible for the parent who has the kid(s) more to have to pay support to the parent who has the kid(s) less if the incomes are grossly disproportionate. That being said, the share of custody is a big factor in the shared custody guidelines - so it's still pretty unusual unless the number of days each parent has is pretty close to each other. You can see more details about how the child support guidelines work in my post here.
Second, if child support has previously been ordered and is being modified, the modification can be made retroactive to the date that the motion to modify was filed. This means if child support gets reduced, the custodial parent could owe an arrearage to the non-custodial parent to represent the retroactive application - but this is not a monthly support obligation, and once that amount is paid off, the non-custodial parent is still the one paying the support.
Myth: There is no statute of limitations to collecting back child support, so I don't need to hurry to get it done.
Reality: You must file an action to collect an arrearage, or get a motion to extend the limitations period granted, within 20 years from the missed payment you are seeking to collect.
First of all, we need to be clear what I am talking about. Child support in Virginia is inherently prospective. You can only collect child support from the date you file your petition forward. If you wait until the kid is 7 to file for child support, you can't then collect support for the kid's first 6 years of life. So, a statute of limitations is not applicable, since you cannot collect support from prior to when you file for it. What I am speaking of here is child support that has been ordered to be paid, but which the payor never actually paid.
This is a myth that actually has a good basis for it. Child support is part of family law, which is an "equitable" area of law (you can read more about common law cases vs. equity cases in my post about contract law here). As is typically the case with equity, there is no specific statute of limitations prescribed for child support arrearages. However, in most equity cases, there is a doctrine called "laches" which says you cannot file an equitable claim if you've waited an "unreasonable" amount of time and that delay has prejudiced the other party. Decades ago (in the 1960's), the Virginia Supreme Court ruled that decrees, including support orders, that have already vested (the payment order date has passed) cannot be altered by equitable doctrines - in other words, the doctrine of laches does not apply to collection of back child support under Virginia law.
So, for many years, we were in a situation where child support had no statute of limitations, and no doctrine of laches - meaning people could wait for decades to bring child support arrearage cases. Then a gentleman named Edward Adcock was sued by his ex-wife in 2006 for back child support payments that were due from 1967 to 1982. His attorney turned to a provision of Virginia law added decades ago that treats all unpaid child support as judgments upon their due date. This law was passed to allow the collection of interest on support arrearages, as well as garnishments and other measures associated with judgments. His attorney then pointed out that Virginia Code Section 8.01-251 places a statute of limitations of 20 years on the collection of judgments, unless prior to the expiration of that period a court grants a motion ("for good cause shown") extending the period for another 20 years. Since Adcock's payments were all more than 20 years old - and his ex-wife had filed no motion for an extension - his attorney argued the case should be dismissed. The trial judge and Court of Appeals disagreed for reasons I won't get into here, but in 2011, the Virginia Supreme Court reversed and ruled that yes, that statute applies.
So, the short story is, the 20 year judgment statute of limitations now applies to child support arrearages. This has been a big change in Virginia child support law, and many attorneys are still catching up with it, but the statute is clearly there now.
Myth: I should represent myself in a child support case, since it's really a simple matter of plugging numbers into a formula.
Reality: Child support is unfortunately much more complicated than the guidelines would lead you to believe, and you are setting yourself up for a disaster if you go in without an attorney.
On its face, the existence of the child support guidelines would seem to indicate you don't really need an attorney to represent you - the guideline call for numbers to be plugged in, and that's it. But what if your ex is unemployed or underemployed intentionally, or just isn't making an effort to get a job - how do you plan to prove what he should be making? What if your ex is hiding income - how do you plan to prove it? What if your work-related child care varies each month - or your ex contests that you don't actually need it at all? Are you aware of the legal principles that apply to work-related child care?
The fact is, every single number that goes into the guidelines has potential grounds for dispute and legal principles behind how to calculate those numbers. On top of that, there are a whole list of reasons why the court can deviate from the child support guidelines, which may require further argument.
An attorney will be best equipped to handle all possible disputes that can arise in a child support context, and like any legal dispute, you're better off with an attorney than without one.
Myth: I also don't need an attorney for child support since I can get it done for free with DCSE.
Reality: If you just go through DCSE you could be in for a long wait and unreasonable results. An attorney can get you support faster, and more accurately.
DCSE is a bureaucracy. Don't get me wrong, it serves a very important function - especially for people who really cannot afford attorneys - but it suffers from the problems that most bureaucracies do. Those being that they are generally slow, inefficient, and often ineffective.
I send people to DCSE in one situation only - the non-custodial parent does not live in Virginia, and Virginia cannot claim personal jurisdiction over that person. In those cases, DCSE, while slow, is the best way to go because they can work with their counter-part in the state in which the non-custodial parent lives to get support set up with minimal hassle to the custodial parent.
If, however, the non-custodial parent lives in Virginia, or Virginia can claim jurisdiction over him, then I pretty much always say we should just go to court and get an order. Opening a case with DCSE can take time - I've seen it take as long as a year - but in court, you can get support to start the day you file (now, it won't actually start that day, but whenever support is ordered, either pendente lite or permanent, it can be made retroactive to the day you filed). Additionally, we can usually get a pendente lite hearing within a few weeks, so you can get at least an initial court order for support within a couple months of filing, and start collecting then. These are not timelines that DCSE can realistically provide for you.
Myth: I don't need an attorney because DCSE has filed for a child support modification on my behalf.
Reality: DCSE does not represent you, and will not engage in the kind of litigation preparation an attorney would.
It is not uncommon for someone to use an attorney to start child support, but then make the collection of that support a DCSE responsibility (a valuable option, since DCSE can get the support directly from the non-custodial parent's paycheck). In such cases, DCSE can also file with the court to amend the support order whenever an amendment appears warranted, but if either parent objects to the amendment, then a hearing has to be held.
In such cases, even if DCSE is seeking to increase the support, you really need your own attorney. DCSE usually does not conduct discovery, and usually is not in a position to prove voluntary under or unemployment. There is simply no way for the DCSE attorney to know the nuances of your case, and since DCSE represents itself, not you, it is unlikely you will be able to get an appointment with the DCSE attorney to discuss those nuances.
Even in DCSE cases, both parties are well advised to have an attorney for all the same reasons as they would be if DCSE was not involved.
Myth: I don't have to let my ex have visitation if he is behind on child support.
Reality: Child support orders and custody/visitation orders are unrelated - even if you had an agreed order entered that made the two related, that relation will be unenforceable. You can never withhold visitation due to non-payment of support, and you can never withhold support due to the other parent's failure to provide visitation.
I did an entire blog post on this one, so the best place to get the details is by reading that post.
Conclusion
These are not nearly all of the myths I encounter, but are by far the most common. If you are involved in a child support case and have heard any of the myths above, or have any other questions or concerns, talk to an attorney. You can set up a consultation with us by calling (703)281-0134 or by e-mailing me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!
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