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Child Support Formula and Departures
Child Support Formula and Departures

Federal law requires each state to have a guideline formula for determining how much child support must be paid.  The formula result must be the default amount.  Departures are, however, allowed.  

In Virginia, the statutes implementing this rule are Virginia Code Sections 20-108.1 and 20-108.2  Section 20-108.2 lays out the formula for determining child support.  Section 20-108.1 says that the formula amount is presumed to be the amount that must be paid and then lists the grounds for deviating from it.  

Here is a link to it:  https://law.lis.virginia.gov/vacode/title20/chapter6/section20-108.1/

There are a total of 14 specific grounds for departing from the guideline amount.  The list also includes a 15th ground that is open ended and allows the judge to consider “[s]uch other factors as are necessary to consider the equities for the parents and children.”

Number 14 in the list comes up the most often. It permits a departure based on “[a] written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support….”   If the parties have agreed in writing to a particular number the judge will almost always just put that number in the support order.

The Juvenile and Domestic Relations Courts routinely accept written agreements about support without questioning them at all.  The same goes for the Circuit Courts but there I have occasionally seen people be required to offer some justification for below guideline support.

Number 3 comes up a lot as well.  It talks about “imputed income.”  The idea of imputed income is that people should earn what they can to support their children.  They cannot voluntarily choose to make less money and pay less in support.

So, in order to prevent this, the concept of imputation was added.  Instead of using the person’s actual income, the court uses what the evidence suggests the person could make if they wanted to.  In cases where they have taken a pay cut, the former pay level will be used despite the fact the person isn’t making that much any more.

Where there is no recent employment history to look to, the process becomes more arbitrary.  Where the parties can afford it, there are vocational experts who will testify to what jobs are available for the person’s qualifications and express an opinion of what they could make.  In the majority of cases, however, the parties cannot afford that kind of expert testimony.  The judge may make a best guess as to what the person could earn and order formula support based on that figure.  

If the parties live far apart and travel for visitation is expensive, there can be a departure for that reason under number 2  “[a]rrangements regarding custody of the children, including the cost of visitation travel….”  If you have to spend a lot of money to have visitation, then you can request a downward departure from the guideline amount if you are the one paying support.  If you are the one receiving support and are having to do a lot of traveling to facilitate the other parent’s visitation, you could ask for an upward departure to help make up for those costs.

The rest of the reasons for allowing a departure don’t come up very often.  If a child has special needs, a departure can be made under number 8.  The cost of daycare to enable a parent to attend school can be a basis for a departure.  In the one case I had where this came up the judge did the formula and included day care expense as if they were working.   

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Robert Jeffries
Robert Jeffries
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