The following information outlines some basic concepts regarding child support in Virginia and includes certain excerpts from the Code of Virginia. It is for informational purposes only and is far from exhaustive. There are numerous other statutes and regulations which may be relevant to your situation, as well as case law. You should consult with a lawyer before making any decisions regarding your family law matter.
The Child Support Guidelines
Most cases (although certainly not all cases) are resolved by the application of the statutory guidelines. Virginia Code Section 20-108.1(B) provides, in part, that “there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award that would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded.” See also Virginia Code Section 20-108.2(A).
To calculate the guideline amount of child support, the following information is generally needed: A) the father’s gross monthly income; B) the mother’s gross monthly income; C) the amount paid per month for child care due to a parent’s employment; and D) the monthly cost paid for the child’s health insurance.
Virginia Code Section 20-108.1(D) defines “gross income” as “all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.” Section 20-108.1(D) further provides that “gross income” does not include
1. Benefits from public assistance and social services programs as defined in [Section] 63.2-100;
2. Federal supplemental security income benefits;
3. Child support received; or
4. Income received by the payor from secondary employment income not previously included in ‘gross income,’ where the payor obtained the income to discharge a child support arrearage established by a court or administrative order and the payor is paying the arrearage pursuant to the order. ‘Secondary employment income’ includes but is not limited to income from an additional job, from self-employment, or from overtime employment. The cessation of such secondary income upon the payment of the arrearage shall not be the basis for a material change in circumstances upon which a modification of child support may be based.”
Spousal support paid between the parents can be excluded from the payor’s income and included in the payee’s income. See Virginia Code Section 20-108.2(C). If a natural or adopted child or children in a party’s household or primary physical custody, and the child or children are not the subject of the present proceeding, then the guideline amount of child support can be affected.
Even with the fairly broad definitions and exclusions in the Code of Virginia, calculating a parent’s gross monthly income can be difficult and a source of great dissension, especially for small business owners, contractors, and anyone whose compensation is not fixed.
Deviating from the Child Support Guidelines
Virginia courts are not required to apply the statutory guidelines in all child support cases. A court can find that the presumption has been rebutted and vary from the guideline amount. To do so, the court must find “that the application of such guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to the factors set out in [Section] 20-108.1.” See Virginia Code Section 20-108.2(A). The factors set out in Virginia Code Section 20-108.1 are the following:
“1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children, including the cost of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential;
4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;
5. Debts of either party arising during the marriage for the benefit of the child;
6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
8. Any special needs of a child resulting from any physical, emotional, or medical condition;
9. Independent financial resources of the child or children;
10. Standard of living for the child or children established during the marriage;
11. Earning capacity, obligations, financial resources, and special needs of each parent;
12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
15. Such other factors as are necessary to consider the equities for the parents and children.” See Virginia Code Sections 20-108.1(B) and 20-108.2(A).”