MODIFYING CHILD SUPPORT

Payments for child support are ordered by the divorce court paid to the parent who has physical custody of the child by the non-custodial parent. Child support is always considered during any divorce proceeding, both during the pendente lite hearing and the first full hearing of the divorce.

For parents who were never married, the custodial parent can ask for a court hearing on child support. Usually a parent seeking child support will start with the intake services of the Juvenile and Domestic Relations Court in their County or with the Department of Child Enforcement Services. With parents who were never married, and even within a former marriage, there can be disputes about whether a person really is the parent of a child. And that can sometimes get complicated. Even when DNA proves that a man is not the father, legal actions can foreclose a challenge to paternity.

Years later, child support may also be modified. A parent who believes that child support is too low or too high must convince the Court that there has been a material change of circumstances before the Court will get into the details. The most common reason "I'm not making as much money as I was" is relevant and significant, but it is often met with skepticism because divorced parents sometimes intentionally lower their income out of spite to hurt the other parent. So earning less money is a valid reason to modify child support. But one must also convince the Court that the change was unavoidable and not because the parent isn't trying or because the parent just didn't want to pay child support to the other parent. You would have to convince the Court that you have tried very seriously to earn more money but have been unable to.

The idea is the custodial parent is bearing the cost of raising the child living in his or her home, for food, clothes, housing, etc. That's not necessarily true. But that's the assumption. Actually, a non-custodial parent may buy clothes for the child, pay for activities, etc. But the law doesn't assume that. (However, that is one reason why the Court can sometimes vary from the formula. If a non-custodial parent is actually bearing the costs of raising the child, that might be a reason for an exception.)

Note that child support is supposed to be for the benefit of the child not for or against one parent or the other. The goal of the legal system is to calculate what the child needs and then decide how much each parent should contribute. But the goal is to provide for the child, not to benefit or punish one parent or the other.

In Virginia, calculating child support is relatively simple. It really does not require a lawyer's time.... if you can prove the financial details of your ex-spouse.

But where you may need to get a lawyer involved is when you can't easily prove what your ex-spouse is actually earning, or the court wants to "impute" income against you or maybe you should ask the court to "impute" income against your ex-spouse. Perhaps there are other issues like the cost of child care that must be considered.

If you actually know and can prove the real income of both the father and the mother and other issues, then it is a simple matter of plugging in those numbers to a formula and cranking out the answer.

Under unusual circumstances, a court can be persuaded to depart from the standard formula. But the Court will almost always follow the formula. You would need to present a very compelling case of very unusual circumstances to have the Court ignore the formula, which is set by statute and mandated by the General Assembly.

Virginia law, set by legislation from the General Assembly, establishes a formula for child support. It is literally just a question of plugging the numbers into the formula and the answer comes out mathematically.

There is in fact a straight-forward worksheet:

Click here to view the worksheet from Virginia General District Court

The formula is established by   Va. Code § 20-108.2  (click here)

In fact, there are even published child support calculators for Virginia that will calculate the amount of monthly child support for you.   Click here to visit one child support calculator website

However, what if you don't know -- or can't prove to the judge -- what salary numbers should go into the formula and worksheet?

You may need to prepare and put on evidence that of your ex-spouse's business activity. Often a person has a cash business or largely cash business and they can easily hide much of their income. The rules assume that it is easy to know a person's income, such as by just looking at their pay stub.

That may take a lot of investigation and work to figure out what your ex-spouse's REAL income is, and to prove it to the court under the rules of evidence. There are times when everyone, including the judge, knows a guy is lying and hiding income, but it can't be proven to the standards of court. A lot of investigation and thought about subpoenas to witnesses and for documents may be necessary.

But, also, there are often allegations (frequently true) that a spouse is deliberately not trying to earn income. Their income may be low, but that's because they are intentionally earning less than they could, strategically, for the purposes of the divorce. It does happen quite a lot. And therefore it is often an allegation in many divorces. Sometimes the allegations are true. Sometimes they are not. But it is often a difficult controversy to explore, investigate, and prove.

As a result, child support during a divorce proceeding or in a later motion to modify child support can often involve a vocational expert. Usually with the assistance of a lawyer, one parent will have a vocational expert testify about what the other parent could be earning if he or she was actually trying.

If the Court believes the evidence, the Court can "impute" income. That means that a spouse might be earning say $40,000 a year but the Court believes that they could be earning fairly easily $75,000 a year. Therefore, the Court will pretend that the person is actually earning $75,000 a year. Normally a Court decides that if it believes that the person is intentionally suppressing their income to manipulate the divorce or child support process. Remember that the idea is not for one parent to win or the other parent to lose, but to take care of the child's needs.


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