Virginia Child Support FAQs

• 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. In most cases, child support is awarded in accordance with statutory guidelines, which use the combined gross income of both parents to determine the baseline amount of support available. The guidelines include a formula established by the Code of Virginia to determine how much support is owed to which parent. The guidelines account for the number of children, and the amount of time each of them spends in care of either parent. Also factored in are the costs of medical insurance for the children, the cost of reasonable work-related childcare 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, but only if the court finds applying the guideline amount would be unjust or inappropriate in a specific case. If the court makes that determination, it will determine how much more or less child support should be awarded based on the ability of each party to provide support, and the best interests of the child, along with evidence supporting any of the following factors:

  • Actual monetary support for other children or family members
  • Arrangement regarding custody of children, including the cost of visitation travel.
  • Imputed income to a party who is voluntarily unemployed or voluntarily underemployed
    • Income may not be imputed to a custodial parent when a child is not in school, childcare services are not available and the cost of such childcare services are not included in the calculation, nor shall a party’s current incarceration for 180 or more days be deemed voluntary unemployment or voluntary underemployment.
    • Changes in employment must be evaluated with consideration of the good faith and reasonableness of the decision
  • Any childcare costs incurred on behalf of the child due to the attendance of the custodial parent in a program likely to maintain or increase that parent’s earning potential.
  • Debts of either party arising during the marriage for the benefit of the child
  • Direct payments ordered by the court for maintaining life insurance coverage, education expenses, or other court-ordered direct payments for the benefit of the child.
  • Extraordinary capital gains, such as those from selling the marital abode.
  • Any special needs of a child resulting from any physical, emotional, or medical condition.
  • Independent financial resources of the child
  • Standard of living for the child established during the marriage
  • Earning capacity, obligations, financial resources, and special and needs of each parent
  • Provisions with regard to marital property that earns income or has that potential.
  • Tax consequences to the parties regarding claims for dependent children and child care expense credits
  • Written agreements or consent orders between the parties as to amount of child support
  • 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, once you have accepted a payment, you cannot collect interest, even if the payment was late. However, if you must go to court to seek unpaid child support, you can receive a judgment for the back support owed, including interest on the overdue amount. Virginia has set a fixed 6 percent interest rate on late child support payments.

• How do I enforce a support order?

  If you are worried that your child’s other parent will not pay a support order, or they are already refusing to pay a valid support order, Virginia law allows for an income deduction order to be entered by the court. Virginia courts have the power to order that the payor’s employer deduct the appropriate monthly amount due from the employee’s paycheck 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 cooperation among 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, but can also relate to a change in the child’s needs, or a relocation. 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. 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. Child support is only modifiable retroactively to the date you file to modify.

• Who pays taxes on child support the payor parent or the payee parent?

  o 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 a 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 IRS rules as the parent who can claim the exemption. You should consult the IRS or a tax attorney if you have any question about whether you are entitled to claim your child.