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!
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