During a Virginia divorce involving children, child support is usually spelled out in the property settlement agreement. In paternity cases in which the parents were never married, the courts may order the non-custodial parent to pay support. The amount of support paid is calculated based on several factors; such as the monthly gross income of each parent, number of children, spousal support paid by the non-custodial parent, and other factors.
After a divorce is finalized, circumstances often change substantially. Ex-spouses get remarried, move to different parts of the state or country, or go back to school to further their career. Children grow up into teenagers and later become adults.
The Virginia court that passed the initial child support order can modify the order if either parent can convince it of the changed circumstances. It can be difficult as the court grants modifications only under specific circumstances, even though either parent may request modifications until the time the child is 18.
Section 20-108 of the Virginia code stipulates the following conditions for modification of a child support order:
- Loss of job and the subsequent loss in earning capacity of the parent who pays child support
- Significant decline in the earning capacity (at least by 25 percent or more) of the parent who pays child support because of a job change or downgrading
- Either of the parents earning a substantial raise in salary or accepting a highly-paid position at work
- Either of the parents coming into a large inheritance
- Significant escalation (at least by 25 percent or more) in the child care costs
- Onset of a chronic health problem or disability that requires additional care for the child
- No provisions for health or dental insurance premiums for the child in the original child support order
- Significant increase (at least by 25 percent or more) in the health insurance or dental insurance premiums of the child
- The child does not need further financial support from the parents, having reached the age of 18 or graduated from high school
Virginia law recognizes that significant changes often occur after a divorce, and the law allows either parent to petition the court to modify child support payments if circumstances warrant it. In general, you must wait at least three years from the time of the original child support order before you can request a modification.
If the petitioner can cite a special circumstance, it may be possible to request a modification before the three-year period has elapsed. Examples of special circumstances may include:
- An increase or decrease of one of the parents’ incomes of at least 25%;
- The need to add a child to the support order due to birth or a custody change;
- A child is no longer eligible to receive child support, or to receive the same amount of support;
- One parent is a member of the National Guard or military reserve and is called to active duty, causing a significant change in income.
How Can You Apply to Modify Child Support Orders in Virginia?
To request modification, you need to file the forms and follow the court process briefly mentioned below with the same Virginia court that passed the original child support order. Bear in mind that the information given below applies to uncontested modification cases. Contact a skillful attorney and seek professional legal guidance if your modification proposals are contested.
- Request to reopen and reinstate your case
With this, you file a motion for the court to reopen your divorce case to review and modify the original child support order.
- Order to reopen your divorce case
A judge reviews the information in your form and signs an order.
- Motion for modification of child support
You need to fill in the existing child support provisions in the original order and your reasons for modification of the same.
- Modified child support order
A judge must sign the modified and new provisions of your child support for them to apply.
- Virginia civil cover sheet
A standard form with every civil court case in the Commonwealth.
Failure to Pay Existing Child Support before the Order is Modified
If you are looking to modify your child support because you are not able to make the current payments, it is important to remember that you cannot just stop paying and expect the issue to go away. It may not seem fair, but whether you can afford to or not, you are required to pay the amount stated in the current child support order until it is modified by a court.
If you fail to pay child support during the interim, you could face severe consequences; such as wage garnishments, liens on real estate or personal property, legal fees, and even criminal charges. Child support is also one of the few types of unsecured debts that cannot be discharged through Chapter 7 bankruptcy. If you cannot pay all of your support right now, pay what you can afford and speak with an experienced lawyer ASAP about getting your child support modified.
Is an Oral Modification Agreement Good Enough?
One common mistake made by some parents is to try to modify the child support payment on their own. This happens frequently in cases when the non-custodial parent cannot afford to pay. For example, the father is laid off from his job and tells his ex he can no longer afford $1,000 a month in child support. His ex agrees to let him pay $500 for now. 10 months later, the father gets a new job and resumes paying $1,000 a month, and his ex tells him that he also owes $5,000 for the 10 months he did not pay the full amount of support.
In this scenario, the father never put anything in writing and never went to the court for approval of the child support modification. Because of this, there is very little he can do if his ex decides to force him to pay back child support. While it is okay for parents to agree between each other to modify support payments, be sure to protect yourself and have the agreement approved by the court.
Speak with a Seasoned Virginia Family Law Attorney Today
Child support is a complicated issue that can be difficult to understand. When circumstances change, and you believe it is necessary to modify the level of support you are paying or receiving, you need skilled legal counsel in your corner strongly advocating for your rights and interests. At the Law Offices of Olmstead & Olmstead, P.C., we have helped many clients in Virginia who have needed a child support modification. We can evaluate your situation and develop the most practical and effective strategy toward obtaining a favorable result.
For a personalized consultation with one of our experienced attorneys, contact our office today at (703) 361-1555.