By: Attorney Daniel I. Miller - John W. Lee, P.C.
Throughout my family law practice, I have handled thousands of Virginia child support cases and have consistently noticed several common misconceptions my clients have about what factors actually matter in a support hearing. The point of this article is to clear up these misconceptions and offer tips to the reader to maximize their result in child support cases, whether their interest is to reduce or to increase the support award.
While there are many factors listed in Virginia Code Section 20-108.2 which may impact child support calculations, the three most important are the gross income ( not net income!) of each party, the cost of health insurance for the children, and the cost of work-related daycare. Before you read on, take a moment and guess which factor you think affects the child support award the most. Believe it or not, the cost of day care has the single greatest effect on the child support amount . I will discuss this in more detail later in this article.
Three common msiconceptions people have going into a Virginia child support hearing are 1) believing that if the custodial parent of an infant child ( under school- age) works, the other parent will pay less, 2) believing that the birth of another child in a subsequent relationship is enough to get the matter reviewed, and 3) believing that child support for multiple children is equally split between those children ( for example, if child support for one child is $500.00, then child support for two children will be $1000.00). All three of these are wrong.
For simplicity’s sake, I will use the example of a divorcing couple in which the mother has primary custody and the father makes $4000.00 per month. To illustrate the common misconceptions, we will add facts to our example as needed.
Many times, I have heard a father who is paying child support for a small child come into my office complaining how his child’s mother refuses to work and is purposely being lazy to make him pay more. My response is that he is probably paying less because she is not working. My response is usually met by a look of disbelief. What he doesn’t realize is that day care is so expensive these days that his portion of the day care costs is almost certainly much more than the reduction in basic support he would get if she was working.
Virginia Code Section 20-108.2(F) states:
Any child-care costs incurred on behalf of the child or children due to employment of the custodial parent shall be added to the basic child support obligation.
So one can see that day care costs are only added to basic Virginia child support if they are necessary due to the custodial parent working. The Boston Globe in a survey from July 2014 indicated the average cost of daycare for a two-year-old child in Virginia was just over $10,000 per year, or $835 per month. This cost is roughly the same today. Daycare, when factored into the Virginia guidelines is paid proportionally by the parties. So, in our scenario in which the father of a 2 year old makes $4,000.00 per month, let’s say the mother could work full time at the same pay. The father would pay $418.00 just for daycare. Believe it or not, running the guidelines would show that the father would pay $553.00 in support if the mother was not working but $876 if she was making the same as him. This is because her added income would not even come close to reducing the support by that same $418.00 due to his share of the daycare.
If I am representing the mother, I usually advise her to work if she wants to without fear that it would greatly impact her child support.
The second misconception is that the birth of a new child within a new relationship can be a material change in circumstances that can reduce or increase the support payment for a child of a past relationship. Virginia Code Section 20-108.2(C)(4) states in part the following:
Where a party to the proceeding has a natural or adopted child or children in the party's household or primary physical custody, and the child or children are not the subject of the present proceeding, there is a presumption that there shall be deducted from the gross income of that party the amount as shown on the Schedule of Monthly Basic Child Support Obligations contained in subsection B that represents that party's support obligation based solely on that party's income as being the total income available for the natural or adopted child or children in the party's household or primary physical custody, who are not the subject of the present proceeding. Provided, however, that the existence of a party's financial responsibility for such a child or children shall not of itself constitute a material change in circumstances for modifying a previous order of child support in any modification proceeding.
Whereas, a party’s support for another child is used in the calculations, it cannot be the sole factor used to get the matter back into court. Basically, I advise my client that even though she has remarried and had two children with her new husband, she cannot get an increase in support from her first child’s father until something else has changed, such as the child is no longer in daycare, health insurance for the child is more expensive, or the father got a significant raise.
Keep in mind, however, that if you can find another material change since the last order, then the new child will be used in the Court’s guideline computation.
Recently a father walked into my office with a fully-endorsed Separation Agreement which his wife’s attorney had drafted. He was happy that they had worked out their differences and spared their three young children the pain of seeing their parents go through a protracted contested divorce process. I reviewed the Agreement and found that he had agreed to pay $500 in support for each child, totaling $1500 per month.
I ran the guidelines for him and showed him that, whereas, the child support for one child was in fact $500 per month, the child support for three children would only be $896 per month. This is because the Virginia Legislature, in drafting the child support law and guidelines, realized that there are some expenses that cover all the children. Things such as rent, electricity, a family health care plan, or transportation costs are nearly the same each month whether you have one child or three children, with rare exceptions.
Using our example above of the two parents earning $4000.00 a piece per month, with no daycare or health care costs, and the mother having custody, the father would pay $458 in support for one child, but only $709 per month for two children. This is not even close to twice as much.
If this man had seen me before signing his wife’s attorney’s Agreement, I would have explained this to him. Because he did not seek advice from a legal professional, he made the wrong assumption that it costs three times as much to care for three children than it does to care for one, and he ended up agreeing to pay her over $600 per month more than he should.
In closing, I hope this article does two things: First, I hope it impresses upon you the benefit and need to seek legal advice when you are involved in a child support matter. Secondly, I hope it clears up some misconceptions you may have about the child support process.