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Update (4/27/18): Some of the information contained in this blog post is now outdated due to changes in the law.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!
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