As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
UPDATE: Please note that, as of July 1, 2014, one or more statements made in this post will no longer be accurate due to changes in the law. Please see my blog post of April 24, 2014 for details.
UPDATE (4/27/18): Some of the information contained in the below blog post is outdated due to changes in the law. Please see my 2018 Relevant Changes in the Law post for details.
Introduction
In theory, child support should be one of the simplest areas of family law to resolve. This is because Virginia, like every other state in the country, has adopted "guidelines" that set the child support for nearly every child support case the state sees. The guidelines are laid out in painstaking detail in Virginia Code Section 20-108.2. Most attorneys who practice family law, myself included, have a reliable computer program that calculates support for them when they plug in the relevant numbers - there are also many calculators available online, but I've found a good number of them to be plainly inaccurate.
So, again, this process seems simple. Plug in the numbers, numbers get spit out. How many complications can there really be? In today's blog post, I will discuss the issues that go into child support that make it complicated, despite the guidelines. I will also explain how the guidelines are actually calculated, and hopefully provide a more solid understanding of how child support in Virginia works.
The Basic Case
I'm going to start off with a very simple case. In this situation, a couple with two children divorce. The children are 6 and 8, both in school. Both parents work full-time, the father earning $84,000 per year, the mother earning $36,000 per year. The mother has custody of the children. The father's employer provides health insurance that covers the children at no additional cost. The children's school day aligns with the mother's work schedule, so she has no daycare costs.
This is the simplest case there is in child support, because the guidelines here are easy. The father earns $7,000 per month while the mother earns $3,000 per month, providing a combined income of $10,000 per month. If we go to the chart in Section 20-108.2, you will see that a combined income level of $10,000 per month for two children yields a "child support need" of $1,577 per month. Since the father earns 70% of the combined income, he is responsible for 70% of that need, or $1,104 per month. The mother is presumed to pay her share on a daily basis because she has the children, but since the father is not custodian, he is required to pay his share to the mother. Thus, in this case, the father's child support is $1,104 per month.
Complication 1 - Health Insurance and Daycare
So, now let's make some adjustments to the above scenario. The two most common adjustments I see in my work involve health insurance and daycare. So, first, let's say that the health insurance for the children is not free, but that the father instead has to pay an extra $500 per month for their health insurance. Next, let's say that instead of 6 and 8, the children are 3 and 5, so only one is in school, and the mother has to pay $1,000 per month for daycare for the other so she can work.
The law allows both of these things to go into the calculation. The custodial parent can include "work-related child care," which is defined in the Code as the cost the parent must pay for the child to be cared for in order to allow that parent to work (and, with a 2013 change in the law - this can also be care to allow the parent to go to school to get a degree to increase his or her earning capacity). The cost must be reasonable, and the reasonableness of this cost is the basis of many court disputes, but for the purpose of this exercise, we will assume the amount here is reasonable.
So, the health insurance and daycare is considered outside the amount "included" in what the Code views as the needs of the children that are taken into account in setting the guidelines. As a result, both are added to the "child support need" listed above. So, suddenly the "child support need" is now $3,077 per month ($1,577 + $1,500). The father's 70% share, then, is now $2,154 per month. The mother is still presumed to pay her share on her own (and does pay the work related child care). But what of the health insurance, part of that "need" total which the father pays in full? Well, since the father is paying it, and it is now considered part of support, that $500 gets deducted from his support total. As a result, in this scenario, the guidelines now have the father paying $1,654 per month to the mother for support.
Complication 2 - Other Children
Now, let's add another common complication we encounter. Let's say this was the second marriage for both of these parents, and they each have one child from their previous marriages. Let's say the father's child from his previous marriage lives with the father, so he doesn't pay any defined child support for that child. Let's also say that the mother's child from her previous marriage does not live with her, and instead she is ordered to pay that child's father $500 per month in child support.
The Code recognizes that other children change the equation because it affects what you can afford. As a result, you can reduce your income by the amount of "support" you pay for the other child. The mother's child support obligation is known - she pays $500 per month, so that is what is taken out of her income, reducing her income for guidelines purposes to $2,500 per month. The father, however, is not so simple to figure out, since the child lives with him.
Well, the Code says in that case, you use the guideline chart in Section 20-108.2 again, and find out what support the father would be paying if he were the only income earner. So, in our chart, we can see that at $7,000 per month for one child, the child support level is $848 per month, and that is what the father gets to reduce from his income.
So, what does this give us? Well, the mother's income is now $2,500 per month, the father's is $6,152 per month. This is a combined total of $8,652 per month. The chart tells us that a total of $8,650 per month (which is what you'd round to) yields a child support need for two children of $1,478 per month. Add in the $1,500 from health insurance and child care, and you get a total need of $2,978 per month. The father now has 71.1% of the income, so his share is now $2,117 per month, and after you subtract the $500 per month in health insurance, he owes child support of $1,617 per month.
Complication 3 - Self-Employment
The last "common" complication that we see is a situation where one parent is self-employed. In that situation, the Code allows for the self-employed parent to deduct one-half of the self-employment tax from his or her income. So, for our purposes, let's assume the mother is self-employed. The self-employment tax is currently 15.3%, so on $3,000 per month that would be $459, half of which would be $230. So, we can now reduce the mother's income by another $230 per month, leaving her with an income of $2,270.
The combined income thus drops to $8,422 per month, the pre-addition child support need becomes $1,457 per month, which becomes $2,957 after adding in insurance and daycare. The father's share is now 73.1% of income, so his share of the support is now $2,160 per month, meaning he owes child support of $1,660 per month after deducting his health insurance cost.
Complication 4 - Different Custody Arrangements
While the above are not all of the complications that come up with calculating support in a "normal" custody arrangement, they are by far the most common. The other common complication is if you have different custody arrangements. I'm not going to get into the details of those calculations here, since they would warrant a whole other post, but there are two other situations worth noting - split custody and shared custody.
Split custody occurs when each parent has custody of one or more of the children, so neither parent has custody over all of the children. Shared custody occurs when each parent has the children for more than 90 days per year (and yes, the definition of "days" has itself sparked many court battles), so each parent is considered to have custody of the children to some degree. In both of these situations, the Code recognizes that really each parent should be paying the other support to some degree, so the child support total becomes the amount the one who would owe more would owe minus the amount the one who would owe less would owe.
I'm not going to get into the details of how these calculations work today because, as I said, they're so complicated they would warrant their own post, but for illustrative purposes, I'll give you some numbers. We'll go back to the example above, but the very simple numbers - $7,000 per month income for the father, $3,000 per month for the mother, no other changes. In that situation, for split custody, the guidelines yield a support obligation of $710 per month for the father and $304 per month for the mother, yielding a net child support obligation for the father of $406 per month.
Now, same situation, except let's say the mother has the children for 190 days per year, and the father has the children for 175 days per year. In that case, the guidelines yield a support obligation of $804 per month for the father and $318 per month for the mother, yielding a net child support obligation for the father of $487 per month.
Complication 5 - Deviation from the Guidelines
Now, after all of that, there is the remaining fact that the court is not required to follow the guidelines. Now, in my experience, the courts follow the guidelines in somewhere around 90% of cases. Nonetheless, there is a list of factors in Virginia Code Section 20-108.1(B) that, if the court thinks them important enough, can warrant the court deviating from the guidelines, either up or down. Whenever a court deviates, it must first calculate the guidelines, then find that is improper based on one, some, or all of the factors in Section 20-108.1(B), and then calculate a new amount.
The most common deviation I see is for the factor in Section 20-108.1(B)(3) - the court finds that a party is voluntarily under or unemployed, and imputes income to them. The court must still calculate the regular guidelines first, then the court will calculate the guidelines with what it considers the "correct" income number, and will order support on that basis. Nonetheless, all of the factors can come up in various cases.
Conclusion
As you can see from the above, despite the existence of guidelines calculation of child support in Virginia is very complicated. Add to the complications the fact that basically every factor above (income, support for other children, reasonableness of health insurance and daycare costs, self-employment issues, etc.) can be disputed at trial, and you find out why a seemingly simple topic results in so much litigation. If you are trying to resolve your child support case and find yourself just spinning your wheels, do yourself a favor and get an attorney. You can call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an appointment. Our initial consultations are free for up to half an hour!
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