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Family Law Issues

As a service to attorneys in domestic relations practice in Virginia and the people and families they serve, Sensei Enterprises offers the article below to clarify certain issues regarding calculating child support amounts.

This article discusses some issues in child support which affect the use of VADER worksheets, and is provided for the purpose of clarification. Please be advised that opinions expressed are those of the authors only and have no force of law.

The topics covered below include the following:

Complex Support Cases | Shared Custody Complexity | Ambiguities in Calculation of Arrears Inconsistent Handling of Different Types of Expenses

Complex Support Cases

A common complex support case is one in which custody of the children of the marriage is a combination of shared custody of some children with sole custody of other children. There is no provision in the Virginia guideline which governs these situations, and determining the fairest solution is difficult. Some of the difficulty arises because the support guideline table in §20-108.2 does not produce a child support for two children that is twice the child support for one child, and because of the 1.4 multiplier in the Shared Support calculation

In sole custody alone, the problem does not arise, because only one child gets the higher support for being the "first" child. In split custody, two children are entered at the higher support rate. This is as it should be, because both husband and wife have to maintain separate households and incur the overhead of having children in the house. That is the guideline split custody calculations treat two children with different custodians as two first children.

However, when you introduce shared custody into the mix, you have a potential problem, because §20-108.2(iii) specifies that the "Shared support need" be determined by multiplying the guideline table amount by 1.4.

For example, suppose you have one sole custody child and a shared custody child, shared equally between Mom and Dad (182.5 days each). Father makes $12,000 per month and mother makes $6000 per month. Here are the resulting supports for both mother and father as custodian of the sole custody child. The first scenario is for sole custody calculated first and the second, for shared custody calculated first:

Sole first: (support to Pa shown as minus #s)
	Sole Custody	Shared Custody	Net
Ma custodian	691	168	859
Pa custodian	-421	168	-253
(where the shared custody is figured for the marginal cost of adding a second child; i.e. shared support for 2 children - shared support for 1 child)

Shared first: (support to Pa shown as minus #s)
	Sole Custody	Shared Custody	Net
Ma custodian	482	295	777
Pa custodian	-241	295	54
(where the sole custody is figured for the marginal cost of adding a second child; i.e. sole support for 2 children - sole support for 1 child)

You can see that the two ways of calculating support produce wildly different values for both father and mother. If Pa is the sole custodian, he gets a monthly support of $253 if sole is calculated first and pays $54 per month if Shared is calculated first! This is a situation crying for a well thought-out solution.

Shared Custody Complexity

There are several areas of concern in the shared custody calculation, (Virginia Code §20-108.2.G.3): The calculation of the "day" for the purposes of applying the shared custody support guideline may be complex and can be unfair to the minority custodian. The forced comparison with sole custody results in 3 worksheets submitted for shared custody. (Fortunately VADER does these automatically.) The use of the federal poverty guidelines in determining the applicability of the shared support guideline produces an additional complexity in the shared support calculation. The problem is that the poverty calculation is based on the number of persons in the household of the possible poverty parent, and these persons may include other people than the supported children.

Ambiguities in Calculation of Arrears

When a person is in arrears in support and then makes a support payment in excess of the current mandated support, Virginia law does not specify whether to apply the excess amount first to the arrearage principal or first to the accumulated interest. In long-term arrearages, the difference in the total amount owed can be significant, depending on which method is chosen. Federal law provides that each state must choose an appropriate method. Virginia has not done so.

DCSE, Virginia’s child support enforcement agency, has chosen to apply the excess first to the outstanding principal and then apply the remainder to the accumulated interest. VADER has been modified to calculate Arrears the DCSE way. However, you could mount a fair argument for applying the excess first to the outstanding interest (as a bank would do) before reducing the principal. This issue is controversial and still needs to be resolved in Virginia law.

Inconsistent Handling of Different Types of Expenses

Work-related child care costs and payments for medical insurance for the child/children are expenses which the statute requires to be added to the basic child support gotten from the guideline table to be allocated by income share. If one party pays the medical insurance, the portion of that premium allocated to the supported children is then subtracted from that party's child support obligation. However, if that party, instead, pays the full cost of the day care center, he or she does not automatically get to deduct this expense from his/her support obligation. Why?

The reason is that in sole custody support, there is a presumption that the custodian is responsible for paying day care. For the payment of medical insurance for the children, however, no such presumption is possible, as the non-custodial parent may have the payment automatically deducted from his/her paycheck.

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