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Westlake Legal Group > Posts tagged "child support"

Kids Staying in House After Separation or Divorce

Khadilkar Law PLLC



May 30, 2017

I have heard of a few people already doing this.  I thought it was an interesting idea – the kids stay in the home, while the parents move in/out based on the custody arrangement.

I wonder if more families will start looking into this option. Interesting article from the New York Times.

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A Comprehensive Guide to Virginia Child Support

By | May 30, 2017

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This is a Comprehensive Guide to Virginia Child Support

What are the laws on child support in Virginia? It’s a straightforward question, but one that requires a comprehensive discussion. This guide on Virginia child support laws lays out the most common issues, questions and answers about child support in our Commonwealth. Before we begin, there are a few important things.  Feel free to peruse the Topics Section of my blog to read about other child support related issues.

We wrote this comprehensive guide for one reason – for fathers and mothers who have questions and need a place to start before they consult with an experienced Northern Virginia Family Law Attorney.

What I have written here is neither legal advice nor a substitute for legal advice. Once you have read this, it may be time for you to get advice regarding your specific child support matter. My firm primarily handles child support matters in Northern Virginia, including counties such as Fairfax, Loudoun, Arlington, and Alexandria.

Below is a list of topics this guide will cover. Feel free to scroll to any topic you wish, but many clients find it useful to read the entire guide. If you are about to embark on a child support case, whether you are the party asking for support or the party being asked to pay support, the time you spend reading this guide will be worthwhile.

I will cite to Virginia statutes throughout this page. Sometimes I will quote them and you will know that because I will use quotes. More often, however, I will just summarize the parts of the code section being discussed at that time.

I cannot cover every child support topic. No guide really can. But what I can do (and have done) is offer you a starting point for the most common issues and questions.  This Virginia child support guide is comprehensive.

  • The purpose and intent of Virginia child support laws.
  • Relationship between child support and parenting time.
  • At what age do Virginia child support payments stop?
  • Guideline child support orders.
  • Virginia child support add-ons.
  • How do you start the child support process?
  • Retroactivity and how far back does child support go?
  • Modification of Virginia child support orders.
  • How is income determined for child support purposes?
  • Special issues in child support cases.
  • How are child support payments made?
  • Child support arrears, interest and enforcement

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Virginia child support laws – what is their purpose and intent?

Virginia’s child support laws are contained primarily in Virginia Code Sections 20-107.2, 20-108.1, and 20-108.2.

 Both parents owe their child a duty of support during the child’s minority; a mother and father’s first and foremost obligation is to support their child. Fundamentally, the purpose of child support laws is to ensure each parent is fulfilling this obligation.  Child support in the Commonwealth of Virginia has evolved in recent years.  With the increasing rate of divorce and out-of-wedlock births, and rising cost of caring for children, the Commonwealth has worked hard to systematize the support process.  An important step in this regard was the creation of child support guidelines.  Virginia offers child support guidelines to assist parents in determining the appropriate amount of their support obligation.  Northern Virginia is an expensive part of the county and the child support guidelines reflect that.  A child should share in the standard of living of both parents.  Child support payments may improve the standard of living of a custodial parent as well and reduce (to a degree) the disparity between each parent’s respective household.

As you may have already surmised, though the obligation is mutual, there is no presumption that each parent contribute equally to the support of a child. Ability to pay, each parent’s income, and time with the child tend to be the primarily drivers of the support calculation. Virginia law presumes the parent who has primary physical custody of the child already contributes a significant part of his or her resources for the child. This presumption, however, can be rebutted.

What are some common issues in determining child support?

While Virginia child support laws are designed to speed up and streamline the process, four issues can often get in the way.

  1. Parents who frustrate or interfere with the other parent’s time with the children:This takes place when parents attempt to “game the system” and is sometimes referred to as “parental gatekeeping.” Over time, systematically isolating the children from one parent may lead to parental alienation. A parent may adopt this strategy to artificially increase his or her time with the child and increase child support.
  2. Parents who have little interest in spending quality time with their children, but still seek parenting time they do not want or cannot handle:  This takes place when parents demand additional time with their children, not because they believe it is best for their children, but because they want to decrease their child support obligation or manipulate other negotiations.
  3. Parents who refuse to become gainfully employed when they have the earning capacity, ability and opportunity: This takes place when a parent fails to recognize that the obligation to financially support a child is mutual. Some parents mistakenly believe that because they were voluntarily unemployed during the marriage, they may remain so after the divorce.
  4. Parents who lie about their income, often claiming it is less than what it actually is, to pay less than what Virginia child support laws require. This takes place when a parent attempts to conceal his or her income or artificially suppress it by becoming voluntarily under-employed.

It is not coincidence there are specific laws to prevent and punish these things.

Our family law firm in Fairfax County, Virginia has had success in obtaining great results for parents who have had to deal with these situations. Check out our reviews on-line.

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What is the relationship between Virginia child support laws and parenting time?

In Virginia child support laws, there is a direct correlation between parenting time (sometimes called “visitation”) and child support. Virginia essentially has two sets of child support guidelines. The Virginia Sole Custody Child Support Guideline is used to calculate child support when one parent has less than 90 days of visitation per year. For calculation purposes a “day” is a full 24-hour period. An overnight may count has a half-day if you are the parent with fewer days during the year. The Virginia Sole Custody Child Support Guideline makes no distinction between a parent who sees his or her child 1 day a year and a parent who sees his or her child 89 days a year: both parents pay the same. The Virginia Shared Custody Child Support Guideline is used to calculate child support when one parent has 90 days or more of visitation per year. The Virginia Shared Custody Child Support Guideline discounts child support for each day a parent has his or her child over 90. A parent pays progressively less child support as he or she has more days with the child.

This is good and bad. It is good, because, as you might expect, a parent who has more time with the child should also have greater need for child support.  It is bad, because the connection between parenting time and child support gives strategic parents incentive to negotiate parenting time not by what is best for the child, but instead by what yields the most favorable child support outcome.

At what age do Virginia child support payments stop?

Virginia Child Support is typically payable until a child reaches the age of 18 years, though support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs.

Parents can agree to support a child beyond 19 by agreement. For example, some parents may extend support to child until the child attains the age of 22 years if the child is pursuing a reasonably continuous course of college education leading to an undergraduate degree and is matriculating as a full-time or substantially full-time student at an accredited college or university, and living full-time or substantially full-time in the residence of one parent.

Guideline Virginia Child Support Orders

From a practical perspective, guideline child support is what the computer program VADER tells the judge child support should be. That, of course, assumes the correct information is inputted into the program.

Does the Family Court have to follow Virginia’s child support guideline?

Not in every case, but there must be a proper, legal reason to deviate from it. Virginia Courts cannot simply fail to order the guideline child support amount for reasons not permitted by law. That is because the guideline child support number is presumptively deemed to be correct.

This presumption of correctness can be rebutted up or down. The Court needs to have admissible evidence that shows the guideline formula would be unjust or inappropriate in the case. What can the Court consider?  It can consider the factors listed in Virginia Code 20-108.1.  We have listed them here.

  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.

The Court must state how it got to the point of deviating from the Virginia child support guideline number.

Do Virginia child support laws allow parents to agree to less or more than what the Child Support Guidelines require?

Courts will generally allow parents to voluntarily agree to pay more than the presumptive amount of the Virginia Child Support Guideline. If it is less, Courts take a more critical eye toward the agreement before they approve it.

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Virginia child support calculator and how is the amount determined?

The three most important factors when calculating the Virginia child support amount are:

  1. The number of children who are entitled to support;
  2. The amount of parenting time each parent has with the children; and
  3. Each parent’s gross income. Many parents mistakenly believe the calculation uses a net, after-tax income because, after all, that is all the money they actually see deposited into their bank account. The child support guidelines, however, are meant to simplify the process and therefore they use your total gross pay before any deductions.

The above are not the only factors. They are simply the ones that have the greatest impact on the child support number.

If there is more than one child, the child support program makes an allocation of the support such that the youngest child receives the full amount of support for one child and then there is a downward adjustment for each additional child. The allocation is not important for your purposes because the computer program figures it out for you.

Virginia child support calculations will include the additional cost a parent incurs to provide health insurance for the children. The one bit of good news for parents paying health insurance is that it is a line item deduction on the child support guideline calculation. Therefore, it’s really both parents contributing toward it, because it does lower the child support obligation by the permitted amount.

Outside of the child support calculation itself, Virginia child support orders also typically contain provisions for allocating unreimbursed medical expenses between the parents. Traditionally this is done on an income pro-rata basis (e.g. if you earn twice as much as the other parent, your share of an unreimbursed medical expense will be twice as much as the other parent).  Uninsured health care costs are an area that can become heavily litigated. This is especially true when one parent claims the treatment was done without consent or was not reasonable or necessary.  Elective plastic surgery for a child is a good example of such a cost.

What about Virginia child support orders and braces?

Does that fall under uninsured medical expenses?

This is another issue that often comes up. Can one parent require the other to pay or share in the cost of braces?

If the braces were recommended by a dental care professional, that helps. If the braces are also a necessity (as opposed to only cosmetic), that helps more. Is there a specific law that specifically says braces are or are not covered under uninsured dental expenses and therefore part of a child support order? Not directly but most parents know whether the braces really are a necessity, luxury or a combination of each so the specific facts typically control this situation.

Also keep in mind that uninsured health care costs are presumed reasonable so there is at least an argument to be made the parent disputing the necessity of the braces is the one that has the burden of proof.

Child care costs as an additional child support add-on

Child care related to employment or reasonably necessary education or training for employment skills must be added to the child support calculation. Like the cost of health insurance for the children, this amount is factored into the calculation on an income pro-rata basis, meaning each party shares in this cost proportionally based on income.

Sometimes, this amount is paid directly to the other parent but it can also be paid directly to the child care provider. That may be best especially in situations where there is a reasonable question as to whether or not the parent asking for the payment is really incurring the expense. We see this in cases where a relative is the child care provider and claims a cost but that cost is really not being paid by the parenting claiming it.

Are there any discretionary child support add-ons?

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Public versus private school

Virginia child support laws give the court discretion to order private school costs to be paid

Virginia family courts may order private schooling costs (including tuition), but whether or not to do so is within the Court’s discretion. If a child has been attending private school, the chances of getting such an order are better than asking for a child to go from public to private.

Some children have special needs that require private or special schooling. In such cases, private schooling is more often granted. Of course, each parent’s ability to pay is also a factor.

Child support add on for extracurricular activities

The Court also has the discretion to order payment for extracurricular activities though such orders tend to relate to exceptional or high level activities as opposed to “run of the mill” activities. I believe a Court is more likely to order payment for activities when it believes the child’s identity or well-being is wrapped up in his or her continued participation in that activity.  High-level gymnasts, ice skaters, golfers, softball players, basketball players, football players, volleyball players, and soccer players would be good examples.  Ability to pay is again a factor.

Travel expenses

The travel costs associated with visitation is a specific factor listed in Virginia Code 20-108.1. The Court must consider those travel costs.  This sometimes occurs when a custodial parent has to travel a greater than normal distance to take the child to the noncustodial parent, but more commonly involves a noncustodial parent travelling long distances by plane or train to exercise visitation.  Having represented several parents who regularly fly across the country to exercise visitation (e.g. San Francisco to Northern Virginia, Seattle to Northern Virginia, etc.), I believe the physical toll of such travelling is more often a greater obstacle to overcome than the financial toll.

How do you start the Virginia child support process?

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Initial child support request

Virginia child support actions often start with the filing of a Complaint for Divorce

 Child support actions traditionally start one of two ways (although these are not the only ways).

  1. A Complaint for Divorce is filed in Circuit Court; or
  2. A Petition for Child Support is filed in Juvenile and Domestic Relations District Court.

A Complaint for Divorce need only state that child support is an issue. The parties can then either pursue child support on a temporary basis (also known as a pendente lite basis) pending their final hearing or simply wait until their final hearing.

A Petition for Child Support in Juvenile and Domestic Relations District Court is typically done by completing and filing the necessary forms in that Court. Some attorneys, however, prefer to type them out in a formal declaration to lay out the basis for the request.

If you were never married to the other parent, you must begin the child support process in Juvenile and Domestic Relations District Court.

Child support hearing

Please don’t represent yourself for your child support hearing. Virginia child support laws and procedure can get complex and quality legal representation can help you avoid an unfair result

At the child support hearing, the Family Court will review each parent’s submitted paperwork, listen to testimony under oath and decide. If there are issues and disputes regarding parenting time, income, imputation of income or other appropriate disputes regarding child support that are factually or legally supported, the Family Court will hear those and make a ruling.

Whatever the Court’s ruling, it will typically be provided verbally on the record and then memorialized in a written order. In Juvenile and Domestic Relations District Court, the parties will generally leave the courtroom with a child support order in hand.  In Circuit Court, one of the attorneys will typically be asked to properly draft and submit a child support order incorporating the Court’s ruling for the Judge to sign.

Retroactivity of Virginia child support orders

What does retroactive child support mean? It means the child support order isn’t just prospective (i.e. dealing with months going forward), it can and often is also retroactive (i.e. dealing with months in the past).  In other words, “retroactive” child support means at your child support hearing you could be ordered to pay an amount going forward and an additional amount for retroactive back child support for earlier months when you may not have paid.

Here is how the retroactive child support works and the rules about it.

The first child support order is typically, though not always, the temporary one. That first, temporary order can be made retroactive to the date the Petition for Child Support or Complaint for Divorce was filed.  That means the start date for your child support obligation may go back to the date the petition or complaint was filed even though your hearing was many months later.

Illustration: A Complaint for Divorce is filed on March 1. The child support hearing takes place on July 1.  On July 1 the Court orders you to pay $500.00 each month going forward for child support and makes that amount retroactive to March 1, meaning you now have back child support due for the months of March, April, May, and June.

Modification of a Virginia child support order

We’ve been talking about the initial child support order. What about a modification of it?

Virginia child support laws allow for child support orders to be modified based upon a material change of circumstances. What makes a change of circumstance “material” is largely left to the judge’s discretion.  Think something significant that warrants another look at the previous calculation.  In most cases, this also means something that was not contemplated at the time of the previous order.

Here are some examples:

  1. The parenting time has changed: This typically happens when one parent’s time goes up or down, whether by agreement or a contested child custody hearing and order;
  2. Either parent’s income situation has changed: income has gone up, down or one parent has become unemployed;
  3. A parent has had another child from another relationship or remarried; or
  4. Changes have been made to the child’s needs or expenses: The most common changes are child care, medical or other health related costs, special needs have developed (including a medical diagnosis), etc.

A change in just about any of the factors that go into the child support calculation may be the basis, but be careful: if the change is not a significant one, filing a modification request may be a waste of time.  For example, if the change in income or parenting time is very small, it may not have much, if any, impact and may not be considered “material.”  Also, keep in mind that Virginia law doesn’t distinguish between the party who files the modification request or whether he or she is seeking to increase or decrease child support.  As a result, sometimes opening the door to modification leads to an unintended result.

How do you know if you are the one who wants to bring a child support modification request or are facing one? Simple. Get good legal advice. Trying to figure these types of things out on your own is usually unwise.

Modification orders are also retroactive to the date the modification request was filed.

Illustration: A current Virginia Child Support Order is in place requiring you to pay $500.00 each month. You file a Motion to Modify Child Support on May 1 seeking a reduction in support.  The hearing on your Motion to Modify takes place on August 1.  At that hearing, the Court reduces your child support obligation to $300.00 each month.  As a result, because you continued to pay $500.00 in May, June, and July, you will be entitled to a child support credit of $200.00 for each of those months.

Waiting to file a child support modification request when you are entitled to one can cause serious, negative financial consequences. Don’t fall into the procrastination trap.

 As mentioned above, if you are the parent who wants a modification of child support (especially a downward one), waiting is one of the worst things you can do. Until there is a new order, the last order remains in effect and the Court usually cannot go back before your modification request was filed and served.  That means you are stuck with the order until you change it.

Verbal agreements may not help you and are often not considered after a modification request is filed. Until you get a Court order, it is safest to assume you are not protected.

Why would anyone wait to modify child support if they can show a change of circumstance? In our opinion there is rarely, if ever, a good reason, but here are some bad ones we have heard and seen people use:

  • Life gets in the way – Work, family, providing for yourself and others hardly leaves time to think about starting a Court proceeding.
  •  Fear or anxiety – for many people, going back to Family Court (especially if previous experiences were not good ones) is the last thing they want. It’s “easier” to do nothing.
  •  For those who seek a downward modification due to a change in parenting time, you are concerned if you file the request, the other parent will start keeping the children from you. Fathers go through this all the time. They worry about “rocking the boat” so they keep paying the higher child support even if they have close to equal, equal or even primary parenting time. The parent receiving support also does this for fear of “upsetting” the paying parent.
  • A job loss can turn a parent’s financial life upside down. The unemployed parent may think it is temporary so the parent waits days, then weeks, then months and all the while that parent cannot afford to pay his or her own expenses.

A few words about appealing Virginia child support orders

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Did the judge make the wrong legal ruling or fail to consider important facts?   An appeal may be a smart option.

But what if the judge got it wrong? What do you do then?  There are several methods by which you can challenge the Family Court’s child support order.

You may have heard about filing an appeal and the ability to take your matter to a higher court. Appealing a decision of the Juvenile and Domestic Relations District Court (the lower court) to the Circuit Court (the higher court) is straight-forward and common.  Provided you file your appeal timely and properly, you will be entitled to a new hearing in Circuit Court.  You will have a second chance to make your case.

Filing an appeal from Circuit Court to the Virginia Court of Appeals is much different and quite difficult. If you are considering filing such an appeal, I highly recommend you seek out the assistance of an attorney. I would be pleased to refer you to an appeals attorney.

How is income determined for Virginia child support purposes?

Virginia child support calculations are based on your gross income. Gross income is broadly defined to include all forms of income from all sources. Almost nothing escapes this definition. It includes, among other things, wages, bonuses, commissions, investment income, social security benefits, unemployment insurance benefits, disability benefits, veteran’s benefits, spousal support, gifts, and awards.

Check out other articles I have written about income on this blog.

The role of tax returns when determining income for Virginia child support purposes

Tax returns and W-2s are typically presumed to be good evidence of a parent’s gross income. That presumption, however, can be rebutted in Family Court where parents fail to report (or under report) their income. In such situations, the Court may look at other evidence of income such as bank deposits, financial disclosures, loan applications, and lifestyle spending.  If you are a self-employed business owner or all-cash/barter employee, it will be particularly important for you to take a realistic look at your gross income.  If you do not present a fair and balanced approach to your income, the Court may impose its own, possibly less charitable, view.

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What are the consequences of lying to the Court about income?

First, if the person has willfully given false testimony (and that includes providing false information on the income and expense declaration), then that may be a felony in the Commonwealth of Virginia. Perjury can be reported and prosecuted. In addition, the Court could make very unfavorable presumptions about your income and it could backfire to such an extent the Family Court designates an income that is actually higher than what the person earns, even if they had told the truth from the outset. In short, losing credibility can blow up in your face.

The Court also has the power to order sanctions and attorney’s fees. If there is a lack of cooperation in the “discovery” process or other circumstances, the Court can also order sanctions that may limit your ability to pursue certain claims or present certain evidence.

What if a father or mother refuses to work or is underemployed?

This issues comes up a lot and typically takes the following form:

Parent A is facing a child support order. Parent B doesn’t work. Parent A tells the Court that Parent B is capable of working, but refuses to do so. What does the Court do?

The Family Court can consider a parent’s earning capacity instead of that parent’s actual earnings if that parent is voluntarily unemployed or underemployed. This is called “imputing” income.  Parent A would be asking the Court to consider what Parent B should be earning as opposed to what Parent B actually earning.

It can be helpful to consider income imputation in two parts – the ability to earn an income and the opportunity to do so. Ability means the parent can actually work and doesn’t suffer from a disability, for example, that prevents him or her working. Ability can also refer to the suitability of the parent’s education, skills, and experience for a particular employment. Opportunity means there are jobs out there to be had and reasonable childcare available for the children. Makes sense right?

Imputing income must also be consistent with the children’s best interest. That may seem like a no-brainer, but there are situations where a parent has special needs children (or an infant) that make it difficult to work full-time and working full-time (or part-time) would be inconsistent with the children’s best interest.

If a parent can show the other has both the ability and opportunity to work, and imputing income would be in the children’s best interests, the Court may replace the actual earned income of a parent with what that parent should be earning.

Importantly, this is not a fault-based idea. Courts usually don’t get into why a parent is not working (except perhaps in cases where a parent was terminated from his or her former employment on fault grounds). What Courts care about is just what we have written – earning capacity through ability and opportunity.

The genesis for all of these laws comes down to one thing – Virginia child support laws are very clear that both parents have the duty to support their children and that duty cannot be placed unreasonably on only one parent.

Can a parent’s assets be considered for child support calculation?

Sometimes a Virginia family law judge can consider assets and investments 

It’s a unique situation, but the short answer is – sometimes. Where an investment generates regular income that the family then accesses for living expenses, the Court will almost assuredly consider that income.  Where one parent’s assets are underinvested or not utilized properly, the Court may, in its discretion, consider the rate of return (i.e. “interest”) that should be earned on that money.

Of course, the question that has to be asked in today’s world is what a reasonable rate of return might be? Banks are giving very little interest and the market can be volatile. CDs are not what they used to be. You can certainly invest your money in the stock market, and many do, but is it really fair for a Family Law Judge to tell you whether your risk tolerance is too low?

Special issues when dealing with Virginia child support.

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Role of new spouse income on Virginia child support

The moment an attorney or judge brings up the subject of the new spouse’s income and its role in Virginia child support, one parent will cry fair and the other parent will cry foul, depending on which parent has the new spouse and the respective income. Here is a common scenario.

Both parents have it wrong.

The new spouse’s income cannot be used to directly raise or lower support; it cannot be merely added to one parent’s income for support calculation purposes.  It can, however, be considered as a deviating factor relating to a parent’s ability to meet his, her, or the child’s reasonable living expenses.  The court could also consider a situation where a parent voluntary and intentionally quits, remains unemployed, underemployed or reduces his or her income and relies on the new spouse’s income.  Just because a parent marries into money with a new spouse, it doesn’t mean his or her previous financial obligations to the child cease.

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Virginia child support laws about bonuses, overtime and commissions

Annual gross income generally does include overtime, commissions, and bonuses. The IRS typically considers those things as income and Virginia’s definition of income is broad enough to encompass those monies and more.

Here are some common scenarios relating to overtime and bonuses:

Question: What happens if the bonus or overtime is sporadic?

Answer: It probably doesn’t matter, because when income fluctuates due to bonuses, overtime, and commissions, it’s common for a court to use an average based on previous years. Consider what sample size of previous years’ best reflects your earnings (or serves your purposes).

Question: What happens if past bonuses, overtime, or commissions are unlikely to reoccur?

Answer: Because courts want to be as all-inclusive as possible when it comes to income for child support calculation purposes, a parent claiming he or she is unlikely to receive a form of income received in past years will have to prove it. Often, that parent’s testimony is not enough. A court will want to understand why that money shouldn’t be counted on. Is overtime no longer available? Has the bonus or commission structure changed or been abandoned? It’s common for high-earning parents to claim their incomes will go down, so a court will want evidence.

Question: What happens when the employed spouse claims he or she voluntarily won’t work overtime?

Answer:  If the overtime is available and the employed spouse has a consistent history of working overtime, it may not matter whether that spouse actually continues voluntarily working overtime. A court will simply assume that parent should continue working overtime and calculate that spouse’s income as if he or she was working overtime, regardless of whether it’s happening. Courts will, however, consider situations where one spouse works a lot of hours that are not sustainable after separation, especially when custody, parenting time and taking care of the kids without the other parent come into play.

Another approach the Court can take is order a percentage of the future overtime or bonus instead of factoring that income into the monthly guideline support order. That may actually work well for both parents because the paying spouse doesn’t pay a monthly support order that is higher than what he or she can afford on a month to month basis, but the parent receiving support still gets guideline support when averaged out over a year.

What does all of this tell you? The Court has discretion on such issues and every case is driven by its own facts.

What is deducted from gross income for Virginia child support purposes?

Figuring out gross income isn’t the end of the Virginia child support process.  Next come certain deductions.

What about spousal support? Does that get deducted? The short answer is “yes.” Spousal support payments are deducted from the child support paying parent’s income and added to the child support receiving parent’s income.

Child support paid under a Court order to a different child.

The Court will consider child support payments made to “other children.” Typically, the amount of this deduction coincides with the amount the parent was ordered to pay for that child.  If no order was entered, the Court will perform a separate calculation to determine the appropriate amount of the “other child” support deduction.

What about self-employment taxes and expenses.

The child support calculation will take into consideration deductible self-employment taxes. Typically, that amount is identified on your tax return.

Courts will also permit a self-employed parent to deduct from their income reasonable and necessary business expenses. What constitutes a “reasonable and necessary” business expense is often debatable. A parent attempting to claim such reductions should come prepared to explain the nature of the expenses.

What about health insurance premiums for the other parent or the children?

The cost associated with providing health insurance for the other parent is not taken into account in the child support calculation.

The cost associated with providing health insurance for a child is taken into account. For child support calculation purposes it is important to isolate what portion of the monthly health insurance premium is attributable to the child. Typically, that can be done by identifying what the health insurance premium would be for the policy holder alone and subtracting that amount from the cost of the health insurance premium for the policy holder with the appropriate number of dependent children. Health insurance plan pricing structures often vary, so it often makes sense to get this pricing information directly from the health insurance company or policy holder’s employer.

What about work-related childcare? Work-related childcare is also factored into the Virginia child support calculation. Such childcare can take many forms, including traditional daycare, nannies, before and after-school programs, and summer camps to name just a few.  When the parents do not agree on childcare, the court will often give significant weight to the care arrangements made for the children in the past and what the parents can actually afford at the time of their hearing.

A parent who is not working cannot claim work-related child care.

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How are child support payments made in Virginia?

Most often child support payments are made directly between the parents by check delivered on the first day of each month until termination. By agreement, parents can agree to an alternative payment schedule such as splitting the child support amount and making it payable on the 1st and 15th day of each month. Many parents find it convenient to set up automatic, direct deposits of the child support amount into an account designated by the other parent.

When payments are made late (or not at all) a parent can request that the Court enter an Income Deduction Order that results in having the child support amount deducted directly from the paying parent’s pay check.

Dealing with the Virginia Department of Child Support Enforcement

The Virginia Department of Child Support Enforcement is also available to serve as a free/low cost intermediary of child support payments. They will collect, track, and forward child support payments between parents.

Child support enforcement with arrears, interest and penalties

We won’t be covering this topic in detail because this Child Support Guide is more focused on requesting or responding to child support requests and not about collection. There are a couple of important things though that you should know.

Do Virginia child support laws add interest to unpaid support?

Yes. The law is pretty simple. Child support arrears accrue interest at the statutory rate of 6% per year.

Do Virginia child support laws allow child support to be waived?

Parents cannot take away the Court’s power (called jurisdiction) to order either of them to pay child support. Virginia’s laws are so strict that parents cannot even waive or limit a child’s right to child support. What do we mean by limit or waive? Here is one example – let’s say a parent fails to make child support payments. This could be for a variety of reasons. Whatever the reason, the mother and father get together and sign an agreement that waives the child support previously owed and unpaid. Is that agreement enforceable? Generally no. Child support arrears cannot be waived nor can the Court modify the child support arrears that have already accrued.

There are exceptions and they are based on unique circumstances which we will cover in future articles. There are also situations where the Court can decide not to enforce a child support order due to the custodial parent’s misconduct. That will also be the subject of a future article.

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Can a parent who doesn’t pay child support be held in contempt of the court’s order?

Yes, and the Court has a number of tools at its disposal to ensure the parties do what they were ordered to do. In the case of unpaid or late paid child support, the parent who willfully fails to perform as ordered could be put on a child support payment plan, ordered to pay the other parent’s attorney’s fees, or even be placed in jail. It’s never a good idea to ignore a court order!

Hire an experienced child support lawyer

You need a child support order. You are facing one against you. There is a modification hearing coming up or one needs to be filed. Whatever the issue you face, the best decision you can make is to consult with and retain a Virginia child support lawyer. If your case is going to be or is in Northern Virginia and you are ready to hire an attorney, contact us.

We hope you enjoyed this guide. We will be writing several others for those looking for general information on Virginia family law. Please check out our other guides and remember that a guide is not designed to provide you with legal advice or information about your specific case. Legal advice comes from having a private consultation with an attorney, preferably one who is experienced in divorce and family law.

 Enjoy this in-depth look at Virginia’s child support laws?

We hope you enjoyed this guide. We will be writing several others for those looking for general information on Virginia family law. Please check out our other guides and remember that a guide is not designed to provide you with legal advice or information about your specific case. Legal advice comes from having a private consultation with an attorney, preferably one who is experienced in divorce and family law.


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Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: http://westlakelegal.com/

Finding Hidden Assets During Divorce

By | February 20, 2017

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According to the National Endowment for Financial Education, 31% of U.S. adults who combined assets with a spouse or partner say they have been deceptive about money and 58% of these adults say they hid cash from their partner or spouse.  Concealing financial assets from a spouse is common, particular in divorce.  Fortunately, however, it is becoming increasingly difficult to do so.  Below are some tips for finding hidden assets during divorce:

  • Traditional Subpoenas and Forensic Accounting. If you know the financial institution your spouse uses, your attorney can most likely issue a document subpoena to that institution requesting all statements and cancelled checks.  Fairfax Family Law Firms (like ours) that frequently handle complex, high asset cases will have an existing framework in place to gather, organize and analyze such financial data. We also have existing relationships with seasoned forensic accountants who will follow deposits and withdraws to “zero-out” the accounts.
  • Private Investigation Services. Private investigation firms can not only follow and photograph your spouse, but can also often perform paid “skip searches” to uncover personal information about your spouse such as criminal records, utility services, credit information, licensing and titling information.  Most Northern Virginia Divorce Law Firms will have existing relationships with Private Investigation Services and will know how to properly use the information investigators obtain.
  • Google search or Free Public Record search. A surprising amount of information can be gathered by simply “Googling” your spouse’s name and his/her employer. For example, an employer’s website may disclose details about your spouse’s job responsibilities or benefits he or she is entitled to receive. Free public records might disclose real estate or commercial transactions, but will generally not be as inclusive as paid searches.
  • Review Internet Browsing History. Take a close look at the internet browsing history of the family computer. It may yield interesting insight into the websites visited by other family members. For example, you may uncover previous website visits to a financial institution where you do not believe you have an account. You may discover visits to other, more colorful websites as well.
  • Review Social Networking sites. People post all manner of personal and professional data on websites like Facebook, LinkedIn, and Twitter. Moreover, friends and colleagues post information about other people on such websites. Has your spouse claimed poverty, but posted pictures of a lavish purchase or vacation? Has a business partner commented on a recent professional transaction (yet undisclosed to you)? These sites are sometimes a treasure trove of useful information.
  • Professional Electronic Data Collection. The abilities of computer forensic professionals continues to astound me. Often they are able to retrieve hidden data or recover “deleted” data directly from electronic devices. It seems almost nothing is ever truly deleted.

If you’ve got questions about finding hidden assets in divorce or tracing financial transactions, feel free to drop me a line. Jason A. Weis, Esquire – Curran Moher Weis P.C. – jweis@curranmoher.com – 10300 Eaton Place, Suite 520 Fairfax, VA 22030 – 571-328-5020.


Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: http://westlakelegal.com/

High Asset Divorce

By | April 25, 2016

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In 2015, Curran Moher Weis, through negotiation or litigation, equitably distributed more than half a billion dollars in assets.  Though our Northern Virginia family law practice represents clients who come in all shapes and sizes (and asset levels), we typically see the same firms over and over again in our high asset divorce and high conflict divorce cases.  Those firms tend to have three common characteristics:  (1) manpower; (2) relationships with experts; and (3) high level experience.

Manpower Helps in High Asset Divorce

Manpower (or womanpower) is critical in document intensive cases like those of high net worth individuals, because the “paperwork burden” can overwhelm smaller firms.  To be clear, I’m not suggesting a lack of intellectual horsepower in smaller firms; there are plenty of very capable, smaller firms.  Instead, I’m talking about sheer processing power.  A small firm of 2 or 3 attorneys with a handful of staff almost certainly has a higher probability of being figuratively, if not literally, swamped in paper when document production exceeds 100,000+ pages.  If you are a successful business owner or high net worth individual heading towards divorce, retain a firm that cannot just survive the paperwork onslaught, but also bear the analytical burdens associated with making effective use of that paperwork.

Experts Are Critical in High Asset Divorce

Second, divorce firms practicing at a high level will be familiar with the area’s leading experts and, perhaps more importantly, have a working history with those experts.  Does your Fairfax County divorce case involve a complex business valuation?  If so, would Stuart Rosenberg be preferable to Joe Estabrook or Charlie Rains?  Does your Loudoun County divorce case involve a complicated custody and visitation matter?  If so, is someone like Stacey Hoffman a better fit for you and your children than Stanton Samenow, Christopher Lane, or Edward Farber?  In your Arlington County divorce case, are you claiming your spouse is capable of returning to work?  Is H. Gray Broughton likely to outshine Kathleen Sampeck or Anthony Bird on the witness stand?  Knowing the proclivities of these experts may put you at an advantage.  Moreover, the expert’s belief that he or she won’t be “sold down the river” by an attorney certainly can’t hurt.

High Level Experience in High Asset Divorce

Finally, there is no substitute for experience in high asset divorces and high conflict divorce cases.  A firm might be large and have good working relationships with experts, but if it doesn’t get involved in at least 2-3 such cases each year, it might be cause for concern.  Is it familiar with dynastic wealth transfer; has it dealt with Qualified Terminable Interest Property Trusts (QTIPs), Grantor Retained Annuity Trusts (GRATs), or Grantor Retained Interest Trust (GRITs)?  Is it familiar with the myriad forms of executive compensation; has it dissected Employee Stock Option Plans (ESOPs), deferred compensation and lending packages, and multi-tiered ownership?  What about Charitable Lead Trusts (CLT) and Charitable Remainder Trusts (CRT)?  Like the law itself, strategies for identifying issues and effectively dealing with them also evolve.  You will want a firm that is current on those tactics.  Similarly, in particularly high stakes cases, the Court itself may harbor its own hesitations that a seasoned attorney with regular experience in such cases may ameliorate.

In both Maryland and the District of Columbia, I have represented family law clients controlling eight-figure (i.e. +$10,000,000.00) asset portfolios.  In Virginia, I have represented family law clients controlling nine-figure (i.e. +$100,000,000.00) asset portfolios.  If you’ve got questions about these issues, feel free to drop me a line. Jason A. Weis, Esquire – Curran Moher Weis P.C. – jweis@curranmoher.com – 10300 Eaton Place, Suite 520 Fairfax, VA 22030 – 571-328-5020.


Contact us at: Westlake Legal Group Your Northern Virginia Full Service Law Firm. Call (703) 406-7616 or click here for our website: http://westlakelegal.com/

Virginia Family Law for Non-Family Law Lawyers

By | April 29, 2015

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WHAT ALL VIRGINIA ATTORNEYS SHOULD KNOW ABOUT

DOMESTIC RELATIONS LAW
by
Jason A. Weis & Grant T. Moher
Curran Moher Weis, PC
10300 Eaton Place, Suite 520
Fairfax, Virginia 22030

As of January 1, 2013

I. INTRODUCTION

a. What does domestic relations encompass?

Divorce; annulment; equitable distribution of property {division of property); spousal support (alimony); child custody, visitation, and support; paternity; pre- and post-marital agreements; division of retirement assets, adoption, tax consequences of separation and divorce; military issues and divorce; some issues affecting same-sex and unmarried couples; protective orders in cases of family abuse or stalking.

b. Common Law Marriage.

There is no such thing as common law marriage in Virginia, and the national trend has been to disfavor these. Currently, only a small handful of states recognize common law marriage, or any variation thereof.

II. DIVORCE

a. Residency requirement. One party must be a bona fide resident and domiciliary of Virginia for at least six months before the commencement of suit for divorce. Va. Code § 20-97.

b. Types of Divorce. One can receive either a divorce a vinculo matrimonii, which is your “standard” divorce. One can also opt for a divorce a mensa et thoro, which is basically the same as legal separation pending a divorce a vinculo. Virtually no one gets a divorce a mensa and filing for one is typically only used as a mechanism to institute a divorce filing where there are grounds for divorce, but the parties have not been separated for the requisite amount of time.

c. Grounds. Divorces may be granted on either a fault or no-fault basis, as follows:

i. Adultery/Sodomy/Buggery. Sexual intercourse or other sexual acts with any third party. See Va. Code § 18.2-365, 18.2-361. One may counter a claim of adultery with any of the following, if they apply: 1) condonation (forgiveness); 2) collusion; 3) recrimination (both guilty of marital fault); and 4) statute of limitations (5 years from act).

ii. Conviction of a Felony. A divorce may be granted if either spouse has been convicted of a felony during the marriage and sentenced to confinement for more than one year.

iii. Cruelty. Cruelty typically involves physical acts only, however extreme mental cruelty may also be actionable.

iv. Desertion. If any party willfully deserts or abandons the other party (basically moves out without consent), divorce may be granted based on desertion.

v. Living Separate and Apart. Divorce may be granted if 1) the parties have lived separate and apart for more than one year, or 2) if the parties have lived separate and apart for six months, they have no minor children, and they have entered into a separation agreement. Separation in Virginia most often occurs when the parties are living in separate residences, not just in separate bedrooms, or when they cease engaging in marital relations. It is possible to live separate and apart in the same house, but very difficult.

vi. Pleading and Practice. One can only file for a divorce a vinculo before the one year separation requirement by filing based on adultery. However, for a felony conviction, cruelty, and desertion, one may file immediately for a divorce a mensa, which can later be amended to request a divorce a vinculo, after the expiration of the statutory period. Typically once a divorce has been filed, the court will set the final hearing for one year after the alleged date of separation, so that if fault grounds cannot be proven, a divorce can still be granted on the basis of separate-and-apart.

III. ANNULMENT

a. Grounds. Annulments in Virginia are rare, but may be granted to either party based on the following:

i. The marriage was not properly licensed and solemnized according to the Virginia Code.

ii. The marriage was prohibited under Va. Code § 20-38.1 (i.e. one party was married before an earlier marriage was dissolved, a marriage between certain related parties).

iii. Either party lacked the capacity to consent to marriage because of mental incapacity.

iv. Fraud or duress.

The aggrieved party only may seek annulment based on the following:

i. Either was under age 18 at the time of the marriage and did not comply with the consent requirements of Va. Code § 20-49.

ii. The other party suffered from “nature or incurable impotency of the body,” when the marriage contract was entered into.

iii. At the time of the marriage, the wife was pregnant by another man or husband fathered a child born to another woman within 10 months after the marriage.

IV. PRE-MARITAL AGREEMENTS

a. General. Pre-Marital Agreements (also called Prenuptial Agreements) are Virginia contracts, and they are enforceable without consideration, provided they are executed according to the standards of Va. Code § 20-147 et seq. and are otherwise not assailable under contract law.

b. Requirements. Per § 20-147, et seq. Pre-Marital Agreements must be

i. In writing.

ii. Signed by both parties.

iii. Executed voluntarily.

iv. Must have a full disclosure of both parties’ assets or a waiver of full disclosure.

c. Scope. Per § 20-150, pre-marital agreements can address:

i. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

ii. The right to buy, sell, use, transfer, manage, etc., any type of property;

iii. The disposition of property upon separation, marital dissolution, death, or any other event;

iv. Spousal support;

v. The making of a will, trust, or other arrangement to carry out the provisions of the agreement

vi. The ownership rights in and disposition of the death benefit from a life insurance policy;

vii. The choice of law governing the agreement;

viii. Any other matter, including the parties’ personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

V. PROPERTY SETTLEMENT AGREEMENTS

a. General. If a divorce case resolves before a final hearing, it is typically done with an agreement referred to as a Property Settlement Agreement, or “PSA.” The requirement for validity of these agreements is the same as for Pre-Marital Agreements. They may resolve all issues between parties or only some.

b. Scope. A PSA can resolve all outstanding issues between parties, similar to the scope of a Pre-Marital Agreement, but also including child custody, visitation, and support. Although courts have the ability to override parties if they think an agreement or any portion thereof is contrary to the best interests of a child, in practice this rarely happens.

c. Enforceability. PSAs are extremely difficult to overturn, even in situations where their practical effect is massively unfair. Where they are overturned, typically it will be because of oppressive conduct or unconscionability.

d. Incorporation within divorce decree. Typically, PSAs will be incorporated but not merged into the Final Decree of Divorce when granted. This allows the PSA to be enforceable by way of a contempt motion or rule to show cause, rather than having to file a separate breach of contract action.

e. Marital Agreements. Similar to Pre-Marital Agreements and Property Settlement Agreements, Marital Agreements are agreements entered into by married couples who want to define their rights in the marriage, but continue to live together as husband and wife. They are governed by the same statutes applicable to Pre-Marital and Property Settlement Agreements.

VI. EQUITABLE DISTRIBUTION OF PROPERTY

a. General. § 20-107.3 gives the Court jurisdiction to divide or transfer jointly owned marital property, make monetary awards, and apportion marital debt. The Court does not have jurisdiction to transfer property titled solely in one party’s name, except in limited circumstances such as a pension, profit sharing plan, or other retirement asset.

b. Classification of Property. Property can be classified as either marital, separate, or part-marital and part-separate (commonly referred to as “hybrid property”).

i. Marital Property. Marital property is all property titled in the names of both parties and all property acquired by each party during the marriage (regardless of who paid for it) that is not separate property;

ii. Separate Property. Separate property is all property owned by a party before the marriage; all property acquired during the marriage by gift, inheritance during the marriage from anyone except the other party; and all property acquired during the marriage in exchange for or from the proceeds of sale of separate property.

Income received from separate property is considered separate if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts have contributed to the increases in value.

iii. Hybrid Property. Hybrid property is property that has both marital and separate component. Examples of this include real property purchased during the marriage using some of a party’s separate property or a 401(k) account owned prior to the marriage that contains both pre-marital and post-marital additions.

c. Calculation of Marital and Separate Interest in Hybrid Property. Virginia does not have a set formula or method for calculating the parties’ interests in hybrid property that has appreciated or depreciated. The method most commonly used is the “Brandenburg” method, which looks at the total contributions made to the asset, or which reduced the loan encumbering the asset, both marital and separate, and apportions the equity in the asset in accordance with those contributions. Although Brandenburg has been accepted by the Court of Appeals, it is not the only method, nor is it the most equitable in many situations.

The Keeling method has also been approved by the Court of Appeals. It awards a party who has made a down payment for the purchase of real estate that has appreciated in value a percentage increase on their down payment equal to the appreciation in value of the property.

The reasonable rate of return method has also been used in at least one Circuit Court case. It involves giving a party making a separate contribution to a piece of marital property their separate investment back, plus an amount designed to give them some rate of return on that investment.

d. Valuation of Property.

i. General. The standard of valuation in Virginia is the “intrinsic” value of the property. See Howell v. Howell, 31 Va. App. 332 (2000). Often this will be the same as the property’s fair market value, but sometimes it will not. For example, in the case of a business that generates significant revenue, but has either little or no fair market value because sale would be impractical or would not yield a fair price, intrinsic value may be far different than fair market value.

ii. Valuation date. In general, property is valued as close to the date of the final divorce hearing as possible.

e. Division of marital property. The court is not required to divide marital property evenly, and there is no presumption in Virginia that a 50/50 division should be made. In practice, however, judges generally start with the notion that marital property should be divided evenly, and generally end up there as well. However, when deciding how to divide marital property, the Court must consider the factors set forth in § 20-107.3.

f. Retirement Assets and Deferred Compensation. Pursuant to section 20-107.3, the Court has the authority to award a spouse an interest in the marital share of a party’s retirement, pension, profit sharing plan, deferred compensation plan and similar assets. This is true whether the plans are vested or unvested and whether they are defined contribution accounts, such as 401(k) plans, or defined benefits, such as traditional pensions which pay a monthly amount until death.

i. What may be awarded. Benefits to a spouse may be paid directly from the entity holding the benefits, such as the retirement plan administrator. Such benefits may only be directed by the Court to be paid to the spouse as they are payable to the party who holds the asset. Any payment ordered by the Court may not exceed 50% of the marital share of the benefits actually received by the spouse who holds the asset.

ii. ERISA plans. Most employer-sponsored retirement plans are covered by ERISA, the “Employee Retirement Income Security Act.” ERISA in general prohibits the transferring of pension rights to another person, however there is an exception in that benefits may be transferred to a former spouse in the event of divorce by way of a Qualified Domestic Relations Order, or QDRO.

iii. Military pensions. Military pensions are not covered by ERISA. They are divided by means of a Military Qualifying Court Order. If one wishes to require the military member to be required to elect his/her former spouse as their survivor beneficiary, they must send a “deemed election” letter to the Defense Finance and Accounting Service (“DFAS”) within one year after entry of the Final Decree of Divorce.

iv. FERS and CSRS Government Pensions. FERS and CSRS government pensions are not covered by ERISA. They may be divided by means of a Court Order Acceptable for Processing, which should be prepared in accordance with federal government regulations applicable to same.

v. Thrift Savings Plans. Government thrift savings plans are not covered by ERISA. They may be divided by means of a Retirement Benefits Court Order (“RBCO”) prepared in accordance with the appropriate federal guidelines.

vi. Stock Options. Stock options are deferred compensation subject to division under § 20-107.3. Options that are vested during the marriage and before the date of separation are marital. Options that vest after the date of separation may be marital, but a fact-driven inquiry must be made. When were they granted? When will they vest? Is continued employment with the company required to keep them? Why were they granted? Often the summary plan description or granting documents associated with the stock options will yield this information.

g. Personal Injury and Worker’s Compensation Awards. Personal injury and worker’s compensation awards can be marital, separate, or hybrid property. The marital share of such an award is the component received for loss of wages incurred during the marriage and the medical expenses not covered by health insurance. The burden of proof to classify the marital and separate portions of the award is on the recipient thereof. See Chretien v. Chretien, 53 Va. App. 200 (2008).

VII. SPOUSAL SUPPORT

a. General. § 20-107.1 authorizes the court to award support to any spouse, and § 20-103 authorizes the court to award pendente lite spousal support in anticipation of a final hearing. The Court may award periodic support, lump sum support, or both. The Court may award support for a defined or permanent duration.

b. Pleading and practice. Spousal support may be requested in a Complaint for Divorce. It may also be requested in a separate maintenance action, which is a common law claim that spouses are living apart and one requires support. Such a claim is commonly filed where parties are living separately but grounds for divorce do not yet exist. One may also file a Petition for spousal support in the Juvenile and Domestic Relations District Court as well.

c. Factors for determining. Section 20-107.1 contains several factors the Court must consider to determine the amount and duration of a support award. An overarching consideration for the Court is the need of one spouse being balanced against the other spouse’s ability to pay. See Robertson v. Robertson, 215 Va. 425 (1975). Fairfax County and several other counties around the state utilize guidelines to determine spousal support for pendente lite purposes only. Several other local courts also informally use the Fairfax County guidelines to determine pendente lite support.

d. Termination. Per § 20-109, unless otherwise agreed, spousal support is terminated upon

i. The death of either spouse;

ii. The remarriage of the recipient spouse; or

iii. The presentment of clear and convincing evidence that the recipient spouse has been habitually cohabiting with another person in a relationship analogous to marriage for one year or more unless termination of support would be unconscionable.

1. If parties agree that support survives any of the above conditions, an agreement must specifically so state. A statement that “support shall not terminate for any reason” or similar language will not be sufficient. See Hardesty v. Hardesty, 40 Va. App. 663 (2003); Waugh v. Waugh, 79 Va. Cir. 120 (2009).

e. Modification. Where the court orders support, or when the parties agree that support may be modified, spousal support may be increased, decreased, or terminated upon a finding of the occurrence of a material change in circumstances, not reasonably within the contemplation of the parties when the award was made; or an event which the court had anticipated would occur during the duration of the award, but which does not in fact occur. § 20-109(B)

f. Effect of Adultery. A spouse guilty of adultery cannot be awarded permanent spousal support unless the court finds that the denial of support would constitute “manifest injustice.” § 20-107.1(B)

g. Reservation. In addition to, or in lieu of granting spousal support, the court may order a reservation of one or both spouse’s rights to seek spousal support in the future. There is a rebuttable presumption that such reservation shall continue for half the length of the marriage. § 20-107.1(C)

h. Tax implications. Spousal support is generally tax-deductible to the payor spouse and includable as income to the recipient, but may be subject to recapture rules and other issues. See IRS publication no. 504.

VIII. CHILD SUPPORT

a. General. Courts have the authority to order one party to pay child support to the other for the support of any minor children they have together. § 20-107.2

b. Length of award. Child support is payable until age 18, but may be extended after age 18 if the child is “(i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party receiving support. Child support then continues until the child graduates from high school or turns age 19, whichever comes first. Support can also be continued for any child over 18 who is (i) severely and permanently disabled, (ii) unable to live independently and support himself; and (iii) resides in the home of the parent seeking or receiving child support. In addition, a court can confirm an agreement by the parties to extend support beyond the statutory timeframe.

c. Guidelines. Support in Virginia is based primarily on guidelines that take into account various things, including the monthly gross incomes of both parties, health insurance costs for the minor children; and work-related child care costs of the minor children. If the non-custodial parent has over 90 days per year with the child, the number of days the non-custodial parent has with the children will be factored in; support is calculated using a shared custody guideline where the non-custodial parent has over 90 days per year with the child. The number generated by the guidelines is presumptively correct, but may be rebutted upon a showing that they would be unjust or inappropriate based on the factors set forth in § 20-108.2

d. Modification. Regardless of what the parties agree to, child support may always be modified by a court of competent jurisdiction based on a material change in circumstances occurring after the date the last order addressing child support was entered. See Crabtree v. Crabtree, 17 Va. App. 81 (1993).

e. Pleading and practice. Child support may be awarded in connection with a suit for divorce in the Circuit Court. An independent action for child support may also be brought in the Juvenile and Domestic Relations District Court by married parties before a divorce commences, or between unmarried individuals who share a child.

f. Interstate practice. The Uniform Interstate Family Support Act, or UIFSA, governs the determination of what state has jurisdiction in support cases involving interstate issues. §20-88.32 et seq.

IX. CHILD CUSTODY

a. General. There are two different forms of custody: legal custody and physical custody. Legal custody is generally the right to make major decisions in the child’s life, such as those relating to the child’s health, education, activities or religious upbringing. Physical custody simply refers to the place a child primarily lives (visitation).

b. What determines custody? Courts have the goal of assuring that children have frequent and continuing contact with both parents, but custody is determined by the best interests of the child. In making this determination, courts must consider the factors set forth in § 20-124.3.

c. Visitation. There is no “standard” or presumptive visitation schedule for a non-custodial parent in Northern Virginia. Visitation will depend on the best interests of the child. Perhaps the most common visitation schedule in Northern Virginia is alternating weekends, one evening each week, an equal share of holidays and two weeks during the summer.

d. Third parties. Third parties who are “persons with a legitimate interest,” such as grandparents, aunts, uncles, etc., may petition the Court for custody of a minor child. §§ 20-124.1, 20-124.2. However, to be awarded custody or visitation rights, third parties are held to a heightened standard. They must show that actual harm to the child is likely to result from their not being granted custody or visitation. See Griffin v. Griffin, 41 Va. App. 77 (2003).

e. Modification. Courts may modify custody decrees as the circumstances of the parents and the benefit of the children may require. § 20-108. The test for modification is generally set forth as: “custody should be modified if: (1) there has been a change of circumstances since the most recent custody award; and (2) a change in custody would be in the best interests of the children.” Keel v. Keel, 225 Va. 606 (1983).

f. Pleading and practice. Child Custody may be addressed in connection with a suit for divorce in the Circuit Court. An independent action for child custody and visitation may also be brought in the Juvenile and Domestic Relations District Court (JDR) by married parties before a divorce commences, or between unmarried individuals who share a child.

g. Interstate issues. Interstate custody issues are governed by the Uniform Child Custody Jurisdiction and Enforcement Act, or “UCCJEA.” Under this act, a court of the child’s home state (where the child has lived for the last six months), generally has jurisdiction to decide custody cases involving more than one state.

h. International issues. International custody cases are governed by the Hague Convention on the Civil Aspects of International Child Abduction, where the other country in question is a signatory to the Convention.

X. JURISDICTION

a. Circuit Court. All divorces are filed in the Circuit Court. Once a Complaint for Divorce has been filed, the Circuit Court has jurisdiction to determine all issues connected to the divorce.

b. Juvenile and Domestic Relations District Court. The Juvenile and Domestic Relations District Court has exclusive jurisdiction over custody, support, protective orders, and related issues between unmarried parties. It has concurrent jurisdiction with the Circuit Court over these issues between married couples.

c. Divestiture. If a case is pending in the Juvenile Court between married parties and one party files a Complaint for Divorce and sets a hearing on the issues of custody, guardianship, visitation, child support, or spousal support within 21 days of the filing of the Complaint, the Juvenile Court is divested of jurisdiction to enter any further orders on the matters that have been raised. § 16.1-244. However, the Juvenile Court can still enforce any existing orders it had previously entered. Once a Circuit Court enters an Order on the issues of custody, visitation or support, any Order entered in the Juvenile Court shall cease and become inoperative. § 20-79

d. Appeal. One may appeal any ruling of the Juvenile Court to the Circuit Court and be afforded a trial de novo, the Notice of Appeal must be filed within 10 days. If one is appealing a support award, an appropriate appeal bond must be posted.

XI. OTHER IMPORTANT ISSUES

a. Bankruptcy. Bankruptcy can affect divorce proceedings in several major ways.

i. Pending divorce proceedings involving the equitable distribution of property are automatically stayed upon the filing by one spouse of bankruptcy. A filing of bankruptcy also serves to stay any post-divorce collections until the stay is lifted;

ii. Child support and spousal support are absolutely non-dischargeable in bankruptcy. Many other obligations under a divorce decree or agreement are non-dischargeable in bankruptcy.

b. Taxation. Fully advising a divorce client in the area of taxation can be daunting (and perhaps best left for a tax attorney or CPA), but the most commonly applicable areas where taxation and divorce law intersect are the following:

i. Spousal support is generally deductible for the payor and income for the recipient, but child support is not tax-deductible;

ii. Child dependency exemptions generally may be claimed by the parent whom the child resides with most, however, a Court does have the ability to apportion the deduction between the parents;

iii. Attorney’s fees incurred for the pursuit, but not the avoidance, of spousal support are deductible;

iv. Transfers of property incident to divorce are not taxable;

v. Although separated parties may file a joint income tax return, they are not required to.

vi. Qualified Domestic Relations Orders permit the division of qualified retirement assets without penalty, but monies so divided are subject to standard income tax and penalties if used prior to retirement.

c. Pendente Lite Relief. After a Complaint for Divorce has been filed, and pending a final ruling by the Court, the Court may grant either or both parties temporary, or pendente lite, relief. § 20-103. The Court may:

i. Award spousal support and require the provision of health insurance coverage;

ii. Award preliminary attorney fees and costs of suit;

iii. Prevent either spouse from imposing any restraint on the personal liberty of the other spouse;

iv. Provide for the custody and visitation of any minor children (except in Fairfax);

v. Award child support and provide for health insurance coverage for any minor children;

vi. Award either party exclusive use and possession of the family residence;

vii. To preserve the estate of either spouse;

viii. To compel either spouse to give security to abide any such decree.


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