As always, before reading today's blog post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Update (4/27/18): Some of the information contained in this blog post is now outdated due to changes in the law. See my 2018 Relevant Changes in the Law post for details.
Introduction
Between comments and e-mails, I get a lot of questions about blog posts. Logically, as I've posted more over time, I've gotten more questions, and sometimes instead of just answering these questions individually, I've felt that answering them for the benefit of everyone is more helpful. This is why I've developed my "Law and the Blog" series, where I occasionally go back to old blog posts and answer some questions I've gotten about them. This is the fifth post in that series, with the most recent one having been completed in November.
"You've gone into some detail about how child support is determined when custody is shared between the parents, and how to tell whether or not custody is shared. What happens when you have two kids, and custody of one is shared, but of the other is not?"
Alas, the law can only do so many things, and anticipating all the situations in which people might find themselves is not feasible. Where none of the three basic situations of child support (sole custody, shared custody, or split custody) cleanly apply to a case, it's up to the judge how best to go about it.
One of the biggest challenges we face is that our child support guidelines, for a myriad of reasons, are not "per child." There's one guideline amount for one child, and another for two children that is less than double the amount for one child. As a result, calculating the support for each child separately then adding the two numbers together does not work here. In this instance, then, I've seen judges take several approaches.
One popular approach is to calculate support for each situation as though both children were in that situation and then average the two (so, calculate the support as though both children were in a "sole custody" situation, then calculate the support as though both children were in the same "shared custody" situation, then average the two numbers). Additionally, if both children are technically in a shared custody situation but have different numbers of "days" the court will typically calculate shared support for the two children with the number of days averaged between them.
The above is the most popular approach I've encountered, but another has been to calculate sole custody support for the one child, shared custody support for the other, add the two together, then take approximately 76% of the combined number. This is because in the guidelines, support for two children is usually (though not uniformly) about 76% of what you would get if you just doubled the number for support of one child.
To compare, I'll use a super simple case. Father earns $5,000 a month, mother earns $5,000 a month, no health insurance, work-related child care, etc. Father has custody of both kids, but mother has one kid for 80 days a year (so sole custody) and one for 120 days a year (so, shared custody).
Under the first method, the sole custody support owed by the mother for both kids would be $784 per month and the shared support owed by the mother if she had both kids for 120 days a year would be $376 per month. Take the average, and you get the mother owing child support of $580 per month.
Under the second method, the sole custody support owed for the one child would be $527 per month and the shared custody support owed for the second child would be $253 per month. Add those two up and take 76% of the combined number gets you $593 per month.
So, the two methods come to very similar results.
Obviously, the whole thing gets more complicated as more children are added to the mix. As long as you can convince a judge that your proposed method is reasonable, however, the judge will be fairly free to use it.
"You've mentioned before that there is no set formula for calculating and modifying spousal support. Could we add one to an agreement and have that enforced by a court?"
Yes, absolutely. Spousal support is one of those areas where you can do virtually anything you want in a settlement agreement and the court will be required to enforce it. This means you can choose your current support based on a formula if you wish, you can lay out in the agreement when support can be changed, and you can even lay out in the agreement how the new support amount is to be calculated if it is changed. The court will enforce that language as written. You should definitely hire an attorney to get that language ironed out, however, as a court will enforce the order exactly as written, even if it says (implicitly or explicitly) something other than what you meant.
"You've previously mentioned that in a child support modification case, you file for that modification in the same court where the last order was entered. Neither my ex nor I still live where the last order was entered - do I still need to file for a modification there?"
That depends. If the last order was entered in Virginia, and either party still lives in Virginia, then you can file where the last order was entered, or you can seek to have that court transfer the case. To do that, you would file a Motion to Reopen and Transfer in the original court and seek to have the case moved where you wish. If the non-moving party is still in Virginia, then this would likely be to the locality where the non-moving party lives. If the non-moving party does not still live in Virginia, then you can seek to have the case moved to the jurisdiction where you live, but don't be surprised if the original court denies the motion if it finds that that court is more convenient for the other party to get to.
If neither of you still live in Virginia, you can open a case in the non-moving party's state seeking registration and modification of the Virginia order under the Uniform Interstate Family Support Act (UIFSA, a uniform law that has been adopted by all fifty states). Similarly, if your original order was not in Virginia, neither of you still live in that state, and the non-moving party now lives in Virginia, you can file in the J&DR Court of the non-moving party's home jurisdiction a petition under UIFSA to register the out of state order, which then gives the Virginia court the power to both enforce and modify that order. You can either then file for modification, or you can file for modification at the same time that you file for registration (the modification proceedings just cannot actually begin until the order has been registered).
Action under UIFSA does not require any action to be taken in the original court. Of note, I am planning to do blog posts on UIFSA, and its near-equivalent in the custody/visitation context, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), in the near future.
"My ex has failed to pay support for years. I filed a Rule to Show Cause and after an extensive hearing, the judge found that my ex owed the money he did, but then blamed me for not forgiving some of the support payments when my ex was unemployed a few years ago - even though he never moved to modify - and refused to hold my ex in contempt or threaten to hold him in contempt. As a result, I'm back to square one with a court order my ex now feels emboldened to violate, but my lawyer is telling me I can't appeal the ruling. Why?"
Contempt of court is an ancient matter that finds its roots in British Common Law. This power represents the court's ability to vindicate itself when someone treats the court with improper disrespect - such as by violating a court's order. Since contempt of court is a court acting on its own behalf (rather than that of a litigate) to protect itself from conduct evident to that court, by common law, contempt of court rulings could not be appealed at all.
Virginia has modified this rule by statute, allowing appeals any time someone is found in contempt. However, the law expressly only applies to an appeal of a finding of contempt itself. The law says nothing about a court's decision not to find someone in contempt. Since a statute must overturn common law principles expressly for those principles to no longer apply, the failure to say anything about a court not finding someone in contempt means that the common law rule that no appeal is allowed is still applicable to those findings - no matter how erroneous the court's reasoning may have been.
Conclusion
As always, keep the questions coming. If you need legal assistance, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (you may also want to check out my initial consultation policy first). Our initial consultations are free for up to half an hour!
Friday, July 29, 2016
Friday, July 15, 2016
Pets and Divorce in Virginia: Who Gets the Dog?
As always, before reading today's blog post, please check out my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
What's the most contentious issue in divorce cases that has nothing to do with kids or money? In my experience, it's pets. It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families. The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law. One of the biggest areas of law that can see animals at center stage is divorce law.
Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really? Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet. No wonder you might not want to just walk away from it. In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here). There is actually published case law in Virginia regarding the disposition of a family dog.
The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.
First and Foremost: Pets are Property
No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property. That's so important a point that I'll say it again - by law in Virginia, pets are property. In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa. Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.
Marital Property vs. Separate Property
Let's say you marry someone who already has kids over whom they have custody. You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent. Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce. Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children. The same does not apply, however, for pets.
If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse. This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).
One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply. This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet. On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).
Division by Agreement
Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement. Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.
As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect. If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that. However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.
Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.
Division by Court
If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court. As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3. This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor. Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."
For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet. Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.
It's important to note that most judges still view the division of pets this way. As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on. Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.
However, some judges have taken a different view. Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession. What does that mean? It means custody and visitation. Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law. The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.
The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity. Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.
All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.
A Brief Note About Protective Orders
Pets' status as property has meant many bad things for pets over the years. One of the worst has been in the context of protective orders. We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty. Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.
In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders. This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one. Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets. This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.
Conclusion
While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue. If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Introduction
What's the most contentious issue in divorce cases that has nothing to do with kids or money? In my experience, it's pets. It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families. The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law. One of the biggest areas of law that can see animals at center stage is divorce law.
Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really? Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet. No wonder you might not want to just walk away from it. In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here). There is actually published case law in Virginia regarding the disposition of a family dog.
The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.
First and Foremost: Pets are Property
No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property. That's so important a point that I'll say it again - by law in Virginia, pets are property. In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa. Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.
Marital Property vs. Separate Property
Let's say you marry someone who already has kids over whom they have custody. You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent. Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce. Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children. The same does not apply, however, for pets.
If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse. This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).
One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply. This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet. On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).
Division by Agreement
Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement. Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.
As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect. If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that. However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.
Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.
Division by Court
If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court. As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3. This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor. Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."
For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet. Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.
It's important to note that most judges still view the division of pets this way. As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on. Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.
However, some judges have taken a different view. Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession. What does that mean? It means custody and visitation. Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law. The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.
The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity. Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.
All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.
A Brief Note About Protective Orders
Pets' status as property has meant many bad things for pets over the years. One of the worst has been in the context of protective orders. We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty. Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.
In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders. This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one. Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets. This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.
Conclusion
While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue. If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!
Friday, July 1, 2016
Virginia Child Support When Custody is Shared - The Basics of the Shared Custody Guidelines
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
The concept of child support is generally easily understood. Both parents have a legal duty to support their children. When the parents are married and living together, this is usually simple - you support your children simply by taking care of them. When you are separated, however, that duty doesn't go away - but it is more complicated to handle. Child support law seeks to handle that issue by requiring the parent who no longer lives with the child to provide funds to the parent who does live with the child so that parent can better care for the child. It is assumed that the parent living with the child (the "custodial parent") still performs his or her duties directly.
But what happens when it's not really that easy to say who the child lives with? When the child in all practical senses lives with both parents? Each parent has a duty to support the child while he or she is with them and while he or she is with the other parent. This is where the concept of shared custody child support comes from. In today's post, I will cover the very basics of how to figure out if you are in a "shared custody" child support situation, and, if so, how to figure out that support level.
History
For most of Virginia history, the concept of "shared custody" was unfamiliar to the law. Visitation, surprisingly enough, is a fairly modern concept. In a divorce, one parent got the child (under the English common law and in Virginia, up until the mid to late 1800's, this parent was ALWAYS, without exception, the father - then this shifted to being usually the mother under what was known as the "tender years doctrine" - and then this shifted to the "best interests of the child" test that is used today) and that was that. Now, once it became the case that the parent getting the child was sometimes the mother, as this was still a time where a woman earning money was rare, the concept of child support was largely born. Still for most of Virginia law, the award of child support was largely arbitrary - a judge just trying to figure out how much was needed.
Then, largely in response to high poverty rates among single mothers, Congress passed a law in 1984 requiring all states to adopt guidelines. Virginia finally complied and did so in 1988. These guidelines set the basics of support, and I covered how they work in my blog post on calculating child support from April of 2014. However, very quickly an unfairness began to emerge. Namely, now that visitation is widely available and expansive, what happens if the "non-custodial" parent who had to pay child support nonetheless had the child with him or her for a substantial portion of the year? Why should you pay support if you have the child for 182 days a year, but receive support if you have the child 183 days? Wasn't this allowing the parent with more time to get out of supporting the child for a good chunk of the year, while also giving them a windfall?
As a result, in the early 1990's, the concept of shared custody child support was born and finally adopted by the Virginia General Assembly in 1992. The point? Come up with a support number that really does recognize that both parents provide their support directly to the child when the child is with him or her, and still requires the parents to provide support to the child while he or she is living with the other parent.
The Basics of How it Works
As with regular "sole" custody child support, the basics for how shared custody works are found in Virginia Code Section 20-108.2. The shared custody guidelines are used when both parents have the child living with them for at least 90 days a year. If one parent has the child fewer than 90 days, then the "sole" custody guidelines (covered in my blog post from April, 2014 mentioned before) still apply.
If you are using the shared custody guidelines, you start with the premise that the cost to support the child is higher in a shared custody situation than a sole custody one - after all, they have two homes to be maintained instead of one. As a result, when you take the parents' combined incomes and calculate the "basic child support need" from the guidelines table in Code Section 20-108.2, you then multiply that number by 1.4. This gives you the basic child support need for shared custody.
Next, you need to figure out how much support each parent should pay while the child is in the other parent's care. To do this, you calculate what percentage of the year each parent has the child (called each parent's "custodial share"). Then you calculate the support owed to each parent. Typically you start with the mother (assuming opposite sex parents, but the same rules apply with same sex parents) by multiplying her custodial share by the total shared support, then adding in her work-related child care costs (if any) and the amount she pays for the child's health insurance (if any). This gives you the total support the child should receive from both parents while in the mother's care. Then, you multiply the father's share of the parents' total income by that number to give you how much support the father should be paying the mother while the children are in the mother's care.
Then, you do the same for the father. Multiply his custodial share by the total shared support, add in his work-related child care costs (if any) and amount he pays for the child's health insurance (if any) and that gives you how much support the child should get from both parents while in the father's care. You then multiply that number by the mother's income share, and that tells you how much support she should be paying the father while the child is in his care.
Now, of course, it would be silly for both the father to pay the mother child support and the mother to pay the father child support, so instead we take whoever should be paying more and subtract the amount the other parent should be paying from the amount he or she should be paying. What is left is the amount of support that parent should be paying.
Now, there is a final step here which many people forget about. The point of shared custody support is to reduce the burden on the child support payor by recognizing that he or she pays a lot of support by directly supporting the child while the child is in that parent's custody. However, the 1.4 multiplier of total support creates some odd situations (very rarely, but they do happen) where the payor is paying more under the shared support guidelines than he or she would under the sole custody support guidelines. As a result, the law does say that where sole custody guidelines have the payor paying less than the shared custody guidelines do, then the sole custody guidelines are to be used. This is a very rare occurrence, however.
A Simple Example
That probably sounds complicated, largely because it is. As a result, I'll use the same example that I did back in my April of 2014 post - let's assume there is one child, the father makes $7,000 per month and the mother makes $3,000 per month. Let's also assume the mother has the child 190 days per year and the father has the child for 175 days per year. Finally, unlike that example, I'll say there is no health insurance, but both parents pay $500 per month in work-related child care.
Plugging these numbers into the guidelines gives you the following - the $10,000 monthly combined income gives a basic support need from the Code of $1,054 per month. Multiplying that by 1.4 gives us a basic shared guideline support need of $1,476 per month.
Now, the mother has a custody share of 52.1%. If you take 52.1% of $1,476, that gives you $768 per month in support need while in the mother's custody, and then add the $500 per month in work-related child care, and you now have the child needing total support of $1,268 per month while in the mother's care. The father's income share is 70%, and 70% of $1,268 is $888, and that is the amount per month is support he should be paying the mother.
Now, for the father, he has a custody share of 47.9%. Taking 47.9% of $1,476, yields $707 per month in support need while in the father's care. Add in his $500 per month in work-related child care, and you get the child needing a total of $1,207 per month while in the father's care. The mother's income share is 30%, so taking 30% of $1,207 yields $362 per month as the amount of support the mother should pay the father.
Next, taking the net of these numbers gives you a final shared custody child support obligation that requires the father to pay the mother $525 per month in child support.
Finally, if we plug these numbers into the sole custody guidelines, we'd see that using those guidelines, the father would owe child support of either $1,088 per month or $938 per month (depending on whether the court allowed him to still use his work-related child care - courts are split on this for sole custody). Since both of those numbers are well above the shared custody guideline amount, the shared custody number of $525 per month would be the father's child support obligation.
So what is a "day"?
You might think this question is silly, but entire cases have turned on the question of "what is a day." The Code says that a "day" is a 24 hour period, but then also says that if the parent who has the child overnight less often has the child overnight but for less than a full 24 hours, there "is a presumption" that each parent has the child for one-half a day during that period.
So, as you can imagine a lot of litigation goes into how many "days" each parent has the child. Note that, generally, if you had the child for 16 hours a day, but the child always went to the other parent's house for an overnight neither of you would technically have any "days" under the Code (since you never have the child for 24 hours and the other parent cannot utilize the half day presumption since they have more overnights). This means judges actually have a lot of discretion in deciding what a day is, and arguments over fractions of days are common.
How do you figure out the future?
Also inherent to this problem is figuring out the number of days each parent will have the child in the future (since child support is inherently prospective), especially if custody and visitation is not well defined, or the order has a history of being largely disregarded. The Code requires you figure out the number of days in the year that each parent has the child, and expressly authorizes the judge to choose at his or her own discretion on what date and at what time the "year" used to calculate the days begins. As a result, if the judge thinks the future is uncertain, he or she might use one year prior to the hearing as the starting date, and look back in the past for that guidance. If, however, the judge thinks the future will be dramatically different from the past, he or she may choose the date of the hearing and try to predict going forward what it will be. Usually, where there is no clear cut custody/visitation order, or there have been wide deviations from the order, the judge will look at the past year, but if a new custody/visitation order is being entered simultaneously or one already exists and has been closely followed, the judge will have the date of the hearing be day one and use the custody/visitation order to figure out days.
That all being said, however, neither of those options (the "year" beginning one year prior to the hearing or beginning the day of the hearing) are required, and there are plenty of battles in litigation over when the year should begin.
Conclusion
Every time the legislature encounters general laws that are, at times, unfair, and tries to combat that unfairness by carving out exceptions, it creates new layers of complexity. The shared guidelines for child support are a perfect example of this. The General Assembly (reasonably and correctly) concluded that the old guidelines were unfair when custody was near even between the parents, so they took a relatively simple formula and made it dramatically more complicated. I cannot recommend strongly enough that if you think you might be in a shared custody support situation, you really need to speak with an attorney. If you're interested in my services, you can call (703)281-0134 to arrange a consultation (please read my initial consultation policy first), or e-mail me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!
Introduction
The concept of child support is generally easily understood. Both parents have a legal duty to support their children. When the parents are married and living together, this is usually simple - you support your children simply by taking care of them. When you are separated, however, that duty doesn't go away - but it is more complicated to handle. Child support law seeks to handle that issue by requiring the parent who no longer lives with the child to provide funds to the parent who does live with the child so that parent can better care for the child. It is assumed that the parent living with the child (the "custodial parent") still performs his or her duties directly.
But what happens when it's not really that easy to say who the child lives with? When the child in all practical senses lives with both parents? Each parent has a duty to support the child while he or she is with them and while he or she is with the other parent. This is where the concept of shared custody child support comes from. In today's post, I will cover the very basics of how to figure out if you are in a "shared custody" child support situation, and, if so, how to figure out that support level.
History
For most of Virginia history, the concept of "shared custody" was unfamiliar to the law. Visitation, surprisingly enough, is a fairly modern concept. In a divorce, one parent got the child (under the English common law and in Virginia, up until the mid to late 1800's, this parent was ALWAYS, without exception, the father - then this shifted to being usually the mother under what was known as the "tender years doctrine" - and then this shifted to the "best interests of the child" test that is used today) and that was that. Now, once it became the case that the parent getting the child was sometimes the mother, as this was still a time where a woman earning money was rare, the concept of child support was largely born. Still for most of Virginia law, the award of child support was largely arbitrary - a judge just trying to figure out how much was needed.
Then, largely in response to high poverty rates among single mothers, Congress passed a law in 1984 requiring all states to adopt guidelines. Virginia finally complied and did so in 1988. These guidelines set the basics of support, and I covered how they work in my blog post on calculating child support from April of 2014. However, very quickly an unfairness began to emerge. Namely, now that visitation is widely available and expansive, what happens if the "non-custodial" parent who had to pay child support nonetheless had the child with him or her for a substantial portion of the year? Why should you pay support if you have the child for 182 days a year, but receive support if you have the child 183 days? Wasn't this allowing the parent with more time to get out of supporting the child for a good chunk of the year, while also giving them a windfall?
As a result, in the early 1990's, the concept of shared custody child support was born and finally adopted by the Virginia General Assembly in 1992. The point? Come up with a support number that really does recognize that both parents provide their support directly to the child when the child is with him or her, and still requires the parents to provide support to the child while he or she is living with the other parent.
The Basics of How it Works
As with regular "sole" custody child support, the basics for how shared custody works are found in Virginia Code Section 20-108.2. The shared custody guidelines are used when both parents have the child living with them for at least 90 days a year. If one parent has the child fewer than 90 days, then the "sole" custody guidelines (covered in my blog post from April, 2014 mentioned before) still apply.
If you are using the shared custody guidelines, you start with the premise that the cost to support the child is higher in a shared custody situation than a sole custody one - after all, they have two homes to be maintained instead of one. As a result, when you take the parents' combined incomes and calculate the "basic child support need" from the guidelines table in Code Section 20-108.2, you then multiply that number by 1.4. This gives you the basic child support need for shared custody.
Next, you need to figure out how much support each parent should pay while the child is in the other parent's care. To do this, you calculate what percentage of the year each parent has the child (called each parent's "custodial share"). Then you calculate the support owed to each parent. Typically you start with the mother (assuming opposite sex parents, but the same rules apply with same sex parents) by multiplying her custodial share by the total shared support, then adding in her work-related child care costs (if any) and the amount she pays for the child's health insurance (if any). This gives you the total support the child should receive from both parents while in the mother's care. Then, you multiply the father's share of the parents' total income by that number to give you how much support the father should be paying the mother while the children are in the mother's care.
Then, you do the same for the father. Multiply his custodial share by the total shared support, add in his work-related child care costs (if any) and amount he pays for the child's health insurance (if any) and that gives you how much support the child should get from both parents while in the father's care. You then multiply that number by the mother's income share, and that tells you how much support she should be paying the father while the child is in his care.
Now, of course, it would be silly for both the father to pay the mother child support and the mother to pay the father child support, so instead we take whoever should be paying more and subtract the amount the other parent should be paying from the amount he or she should be paying. What is left is the amount of support that parent should be paying.
Now, there is a final step here which many people forget about. The point of shared custody support is to reduce the burden on the child support payor by recognizing that he or she pays a lot of support by directly supporting the child while the child is in that parent's custody. However, the 1.4 multiplier of total support creates some odd situations (very rarely, but they do happen) where the payor is paying more under the shared support guidelines than he or she would under the sole custody support guidelines. As a result, the law does say that where sole custody guidelines have the payor paying less than the shared custody guidelines do, then the sole custody guidelines are to be used. This is a very rare occurrence, however.
A Simple Example
That probably sounds complicated, largely because it is. As a result, I'll use the same example that I did back in my April of 2014 post - let's assume there is one child, the father makes $7,000 per month and the mother makes $3,000 per month. Let's also assume the mother has the child 190 days per year and the father has the child for 175 days per year. Finally, unlike that example, I'll say there is no health insurance, but both parents pay $500 per month in work-related child care.
Plugging these numbers into the guidelines gives you the following - the $10,000 monthly combined income gives a basic support need from the Code of $1,054 per month. Multiplying that by 1.4 gives us a basic shared guideline support need of $1,476 per month.
Now, the mother has a custody share of 52.1%. If you take 52.1% of $1,476, that gives you $768 per month in support need while in the mother's custody, and then add the $500 per month in work-related child care, and you now have the child needing total support of $1,268 per month while in the mother's care. The father's income share is 70%, and 70% of $1,268 is $888, and that is the amount per month is support he should be paying the mother.
Now, for the father, he has a custody share of 47.9%. Taking 47.9% of $1,476, yields $707 per month in support need while in the father's care. Add in his $500 per month in work-related child care, and you get the child needing a total of $1,207 per month while in the father's care. The mother's income share is 30%, so taking 30% of $1,207 yields $362 per month as the amount of support the mother should pay the father.
Next, taking the net of these numbers gives you a final shared custody child support obligation that requires the father to pay the mother $525 per month in child support.
Finally, if we plug these numbers into the sole custody guidelines, we'd see that using those guidelines, the father would owe child support of either $1,088 per month or $938 per month (depending on whether the court allowed him to still use his work-related child care - courts are split on this for sole custody). Since both of those numbers are well above the shared custody guideline amount, the shared custody number of $525 per month would be the father's child support obligation.
So what is a "day"?
You might think this question is silly, but entire cases have turned on the question of "what is a day." The Code says that a "day" is a 24 hour period, but then also says that if the parent who has the child overnight less often has the child overnight but for less than a full 24 hours, there "is a presumption" that each parent has the child for one-half a day during that period.
So, as you can imagine a lot of litigation goes into how many "days" each parent has the child. Note that, generally, if you had the child for 16 hours a day, but the child always went to the other parent's house for an overnight neither of you would technically have any "days" under the Code (since you never have the child for 24 hours and the other parent cannot utilize the half day presumption since they have more overnights). This means judges actually have a lot of discretion in deciding what a day is, and arguments over fractions of days are common.
How do you figure out the future?
Also inherent to this problem is figuring out the number of days each parent will have the child in the future (since child support is inherently prospective), especially if custody and visitation is not well defined, or the order has a history of being largely disregarded. The Code requires you figure out the number of days in the year that each parent has the child, and expressly authorizes the judge to choose at his or her own discretion on what date and at what time the "year" used to calculate the days begins. As a result, if the judge thinks the future is uncertain, he or she might use one year prior to the hearing as the starting date, and look back in the past for that guidance. If, however, the judge thinks the future will be dramatically different from the past, he or she may choose the date of the hearing and try to predict going forward what it will be. Usually, where there is no clear cut custody/visitation order, or there have been wide deviations from the order, the judge will look at the past year, but if a new custody/visitation order is being entered simultaneously or one already exists and has been closely followed, the judge will have the date of the hearing be day one and use the custody/visitation order to figure out days.
That all being said, however, neither of those options (the "year" beginning one year prior to the hearing or beginning the day of the hearing) are required, and there are plenty of battles in litigation over when the year should begin.
Conclusion
Every time the legislature encounters general laws that are, at times, unfair, and tries to combat that unfairness by carving out exceptions, it creates new layers of complexity. The shared guidelines for child support are a perfect example of this. The General Assembly (reasonably and correctly) concluded that the old guidelines were unfair when custody was near even between the parents, so they took a relatively simple formula and made it dramatically more complicated. I cannot recommend strongly enough that if you think you might be in a shared custody support situation, you really need to speak with an attorney. If you're interested in my services, you can call (703)281-0134 to arrange a consultation (please read my initial consultation policy first), or e-mail me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!
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