Am I entitled to child support, and how much can I get?
Both parents owe a duty of support to their children. Children are entitled to whatever financial advantages they would have enjoyed had the family remained intact. Child support is awarded in accordance with statutory guidelines, which are based on the combined gross income of both parents. Also factored into the guidelines are the costs of medical insurance for the children, the cost of day care, and the cost of any extraordinary medical costs incurred by the children.
Is it possible to deviate from the child support guidelines?
Courts presume that the amount derived from the guidelines as child support is appropriate. This presumption may be rebutted, meaning that the guideline amount can be increased or decreased, based on any of the following factors:
- Actual monetary support for other children or family members;
- Arrangement regarding custody of children;
- Imputed income to a party who is voluntarily unemployed or voluntarily underemployed (except income may not be imputed to custodial parent when child is not in school, child care services are not available and the cost of such child care services are not included in the calculation);
- Debts of either party arising during the marriage for the benefit of the child;
- Debts incurred for the production of income;
- Direct payments ordered by the court for health care coverage
- Extraordinary capital gains;
- Age, physical and mental condition of the child;
- Independent financial resources of the child;
- Standard of living established during the marriage;
- Earning capacity, obligations and needs, and financial resources of each parent;
- Contributions (non monetary and monetary) to the well-being of the family;
- Provisions with regard to marital property;
- Tax consequences to the parties regarding claims for dependent children and child care expenses;
- Written agreements between the parties as to amount of child support;
- Agreed pendente lite decrees; and
- Other relevant factors
- What if I have let a child support order sit for a while; is there a statute of limitations?
Under Virginia law, each payment is a judgment and the statute of limitations for judgments is applied to each child support payment. At the current time, the statute of limitations for judgments is 20 years.
My child's other parent is consistently late in paying child support. Is there any way that I can collect interest on the late payments?
In Virginia you cannot collect interest on late child support payments that you have already accepted. However, if you have to go to court to seek back child support which has not been paid, you can receive a judgment for the back support owed, which includes interest on the amount which has not been paid on time. Virginia has set a fixed 6% interest rate on late child support payments.
How do I enforce a support order?
If you are worried that your spouse will not pay a support order, or if you spouse is refusing to pay a valid support order, Virginia law allows for an income deduction order to be entered by the court. A Virginia court has the power to order that the payor's employer deduct the appropriate monthly amount due from the employee's pay check and to pay that amount to the parent entitled to receive the support.
What do I do if my child's other parent moves to a different state and I'm worried that he/she will stop paying support?
Under the Uniform Interstate Family Support Act, there is comity between the states in the enforcement of child support orders. If you have a child support order issued by any state court, you may register it in the other parent's new state. Once you have registered the support order, you may apply to that state to have the order enforced there.
Is there any way that the amount of a child support order can be increased or decreased?
Yes. However, a child support order may only be modified based on a material change in circumstances. Such a change in circumstances usually relates to the income of the parents, and can also relate to a change in the child's needs. You must petition the court for modification of your child support order; you cannot rely solely on an agreement with the other parent, whether written or oral, to increase or decrease child support. A court will usually adopt an agreement reached by the parents as to child support, but the court does not have to honor an agreement between the parties to lower or raise child support, since child support is the right of the child and not the parent receiving support. If you reach an agreement with the other parent to modify child support, you should petition the court for a modification of your order in a timely fashion because the court can only make prospective modifications to child support orders.
Who pays taxes on child support - the payor parent or the payee parent?
The payor parent may not deduct child support payments, and the payee parent does not include child support payments as income on their taxes. It is common for parties to include in a settlement agreement that the parties will alternate the years in which they claim their child as a dependent on their taxes, so long as the parent paying child support is making timely payments and is current with their obligation. If there is no agreement, and the court order is silent as to the tax dependency exemption, the custodial parent is generally designated by the I.R.S rules as the parent who can claim the exemption. You should consult the I.R.S. or an attorney if you have any question about whether you are entitled to claim your child.