What is Child Support?
Child support is the monetary obligation that a noncustodial parent/responsible party (parent who does not have physical custody of their child) pays to the parent who does (custodial parent). In Virginia, both parents are financially responsible for the child, but the law presumes that the parent with whom the child is living provides for many of the child’s financial needs, therefore, only the noncustodial parent will be responsible child support.
How do I get Child Support?
Child support can either be awarded administratively at the Division of Child Support Enforcement (DCSE) or through judicial means in the Juvenile and Domestic Relations Court (J&DR Court) or in the Circuit Court as part of a separation agreement or divorce decree.
What is the process for establishing child support through the Division of Child Support Enforcement?
To establish child support through the Division of Child Support Enforcement (DCSE) you do not need to hire an attorney. You can simply go to the DCSE for assistance. First, you must submit an application for services with the DCSE who will in turn issue an Administrative Support Order (ASO). The ASO will be served upon the noncustodial parent who has 10 days to object and request a hearing date regarding the issue of child support. If there is no objection, the ASO will be treated as valid as a Child Support Order.
For more information on the DCSE, please visit http://www.dss.virginia.gov/family/dcse/faq.html.
What is the process for establishing child support through the court?
The establishment of a Child Support Order can be accomplished either by an independent petition in J&DR Court or in the Circuit Court as part of a divorce judgment. In the J&DR Court, a petition for child support will typically be heard within a number of weeks, at which time, the court will evaluate the evidence presented and issue a Child Support Order if warranted. At that time, the court may also put into place a mechanism for enforcement of the Child Support Order.
What will the Court consider when determining child support?
The determination of child support is different for every family and even for each child within a family. Courts will look to set child support in an amount sufficient to provide for a child’s necessary expenses, which include food, shelter, clothing, education, and health care. Courts will use the Code of Virginia’s Child Support Guidelines to set the amount of support based upon the parent’s income, time with the child, and other financial matters. Additionally, the court is permitted to consider the following factors when determining the final obligation amount: the needs of the child; the child’s age; the ability for the noncustodial parent to pay the support obligation; any special needs the child may have; costs for child care; monetary support for other family members; and, other factors that necessary to provide a fair Child Support Order for the child.
The amount of support calculated by using the Child Support Guidelines is presumptively correct thus, if the court wishes to set a different amount based upon the previously mentioned factors, it must give a justification, in writing, stating the reasons for the deviation. Above all, when setting the child support amount, the court will always do what is in the best interest of the child.
What types of things can the Child Support Order cover?
Ultimately, the money paid toward a Child Support Order is for the general necessities of the child. Payments are to be used for food, housing, and the child’s clothing. Also, the Order can include the cost of health care or child care, but beyond these basics necessities courts will not typically order payment unless the parents agree on their own accord to provide for extra expenses.
Do I have to have a judge determine the amount in my Child Support Order?
No. As previously mentioned, parents can come to an agreement regarding the amount of the Child Support Order. Additionally, the use of an agreement can allow the parties to account for payment of things the court may not. For example, if the child participates in competitive baseball, the parents can agree to split the costs for the child’s participation or can agree that one parent will pay for all costs. Importantly, even if the parent’s agree to the amount of the Child Support Order, the court will still use the Child Support Guidelines to determine what the presumptive amount would have been and will not allow the amount of the agreed support to be less than that guideline amount unless it is in the best interest of the child to do so.
What if I can’t afford to pay child support?
In Virginia, even if you do not have a job or bring in income, you will still be obligated to pay child support unless there is a good reason for not paying. There are limited situations where child support will not be ordered, such as the receipt of SSI disability payments. Otherwise, Virginia sets a minimum child support obligation in the amount of $68.00 per month even if you can’t afford to pay.
How long do I have to pay child support?
Child support payments may terminate when the child reaches 19 years old or graduates from high school, whichever occurs first, unless the child has a mental or physical illness requiring continued support by the custodial parent. Sometimes whether a child is emancipated may be contested. It is important that you consult an attorney if there are issues regarding whether your support order should continue. Also, if the child’s parents agree to extend child support beyond that required in the statute in an agreement, the court will not typically step in to change the terms of that agreement.
What if the noncustodial parent isn’t paying the ordered child support amount?
You have several options to enforce a child support order that is not being paid.
DSCE orders for child support will be enforced by the department itself. It will enforce the order through such means as income withholding, property liens, suspension of driver’s or professional licenses, interception of tax refunds, or other mechanisms.
For Child Support Orders established by a court, you may file a motion to get the noncustodial parent’s income directly deducted for the amount of the support obligation or a motion for the noncustodial parent to show cause why they should not be held in contempt for not paying their support obligation. Further, to address the payments that haven’t been made but are owed (arrears), a Motion and Notice for Judgment for Arrearages can be filed. This motion will allow the court to calculate the amount of past due payments owed and to provide an additional monthly payment amount on top of the support obligation for the payment of such.
What if I don’t pay my child support obligation? What can happen to me?
This is common question that depends on your situation and the court. Generally, the punishment for nonpayment of child support can range from income withholding of wages or Social Security benefits to imprisonment. Further, your license can be suspended, your income tax return intercepted, your property seized, funds in your bank account seized, or you can even have the delinquency reported to major credit agencies. Remember, it’s better not to take chances with such punishments; it’s always best to pay your support obligation when it is due.
What if I can’t pay my child support obligation?
If you cannot pay your Child Support Order you should immediately take the appropriate steps to have your order modified. It is always advisable to seek the representation of counsel to assist with this process in order to ensure (1) you qualify for a modification and (2) to present the appropriate evidence to obtain a modification. Until a Motion to Amend or Review a Child Support Order is filed, your current support obligation will continue to accrue if you are paying it in its entirety. You will be obligated to pay it back. That is why it is so important to seek counsel immediately if you are unable to pay your support.
Why do I still have to pay child support after my child has turned 19 or graduated high school?
Depending on the situation, you likely owe arrears (unpaid/back child support). You will continue to pay any arrears that have accrued while your child was still under a support order until all payments are made. Therefore, if you owe $25,000 in arrears and pay that at a minimum of $65 per month, it will take you 32 years to satisfy your back child support obligation. Again, this is why it is so important to pay your child support on time and if you are unable to do so, to seek legal representation to file a motion to modify your order.