In Virginia, the Child Support Guideline amounts come from a table which is set forth in the Virginia Code §20-108.2. That Guideline’s Table dictates the “presumptive amount” of child support to be paid in various situations. (See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-108.2) That child support obligation (a single dollar amount that Virginia says your child will need in order to “make it” in the world based on his/her parents’ financial status) is then divided up between the parents, based on their percentage share of income produced and, in certain situations (see last bullet point below), the amount of time that the child spends with each parent. The parent that earns the most money is usually the parent who ends up actually paying child support to the other parent (though not always, depending on the custody share arrangements).
To calculate the presumptive amount of child support, you need the following information (which become the variables for the calculation):
- gross monthly income for both parents (usually pretty simple except in cases of small business owners and sales professionals);
- the actual cost of health insurance for the child (not the entire family);
- the costs of work related childcare (though this is often factored outside of the calculation);
- and, in cases where the child spends greater than 90 days (24 hour periods) with the non-primary parent (which also includes 50/50 custody cases), the number of days the child spends with each parent per year;
- and, in cases where there is also a spousal support obligation, that amount, too, is usually put into the calculation.
The best way to calculate child support is with a professional – a divorce mediator or attorney. Unfortunately, most clients leave out key information or miss a variable when they try and figure their own child support amount with online calculators. At least, that has been my experience. It’s never a bad idea to get some preliminary numbers, but a professional should really assist before you get committed to (or get upset by!) a child support amount.
Once the parties agree/the judge determines what the correct variables are to run a Virginia Child Support Calculation (i.e. gross incomes, cost of health insurance, etc.), the amount calculated is presumed to be correct. However, in certain situations, a parent(s) does not agree with that number – and therein lies a big problem.
A battle over whether or not to apply the presumed child support amount in a Virginia divorce – whether in terms of ratcheting that number above guidelines or pushing it below guidelines – is one of the areas where the flexibility and low cost of divorce mediation should be considered. The “legalese” for this modification of the presumed guideline’s child support number is “deviation.”
Anyone considering deviating from the Virginia child support guidelines amount (especially if that parent is seeking a below-guideline’s number) needs to be aware that courts tend to like formulas. That means that if you do not think that the Virginia guideline’s calculation suits your family’s needs best, you will need to prove it. That means evidence. And that means lawyers and big money (if you choose to litigate instead of mediate).
Further, judges who follow the letter of the law must be very particular about the details of the evidence presented. Child-related matters are highly sensitive – and no judge wants to deny a child the basic support that is presumed needed (at least as far as the Virginia General Assembly is concerned) for anything less than a very, very good reason. (It is notable that the receipt of child support is the child’s right and not the custodial parent’s right. So, technically, even the custodial parent does not have the right to waive child support/agree to a below guideline’s amount of child support on his/her own since it is not that parent’s right to waive the child’s right to financial support!)
Courts are required to abide by the following protocol and criteria if and when there is a request by a parent to deviate from the Virginia Child Support Guideline’s Presumed Amount (pursuant to §20-108.1 of the Virginia Code):
The Court must make written findings that:
A. The application of the guidelines would be unjust or inappropriate in a particular case; and
B. There is justification as to why the child support obligation ordered by the court varies from the presumed guideline amount based on relevant evidence pertaining to: The ability of each party to provide child support and the best interests of the child, as follows:
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.
At Graine Mediation, we follow similar protocol to the courts when clients are considering a deviation from the Virginia Child Support Guidelines. However, in the Fairfax and Northern Virginia area – where lifestyles tend be quite expensive in terms of the stepped-up extracurricular activities, tutoring, overnight camps, etc. that children are involved in – there is rarely a case where a below-guideline’s child support obligation is agreed to by parents in mediation. (Remember: The guidelines were developed by the Virginia General Assembly for state-wide application – and most Fairfax/Northern Virginia families do not live the lifestyle or raise their children, in terms of dollars spent, like most of the families in other parts of Virginia.) Thus, below-guidelines agreements are rare in my mediation practice. However, above-guidelines deviations are often discussed but, even then, obligating parents to above-guidelines monthly child support amounts are often disregarded in favor of other more practical and creative solutions to award the support necessary while, at the same time, satisfying (as much as possible) each parents’ need for financial stability and control.
Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator
This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.