Can Child Support be Modified because of a Disability?

When child support is awarded at the conclusion of a divorce or parentage case, support payments are firmly established. Child support is set based on the parent’s ability to pay and the best interests of the child(ren), with the goal of providing the same level of support (or as close to it as possible) as the child(ren) received when the parents were together. A parent cannot stop making full payments on their own; they must go back to court to seek a modification.

When the parent who is responsible for child support becomes disabled and is no longer able to work, there is a strong likelihood that they will not have the financial means to continue paying the same level of support as when they were working. Many individuals in this situation often ask, “can child support be modified because of a disability?”

The short answer to that question is “probably”, but as always, it depends on your specific circumstances. Modifications can usually be granted when there is a significant decrease in income; but you cannot assume that this will be the case, and you still need to obtain approval from the court before your child support payments can be formally modified.

Before going straight to the court, however, there are some questions you should answer and potentially some other options to look at:

What Type of Disability Payments will you be Receiving?

Since your change in income is the primary determining factor the court will look at in deciding whether or not to modify child support, one of the first questions that will be asked is how much will you be getting in disability, and follow up to that – how will your disability income compare with your current level of income?

The amount you receive in disability will be determined largely by where you are getting your benefits from. There are several potential sources of disability income:

  • A Private Disability Insurance Plan: If you have disability insurance that you purchased privately, this will usually pay you somewhere between 60% and 80% of your current take home pay (after taxes). If you have good coverage that is paying more toward 80% or higher, then the court will probably not modify your child support obligations all that much.
  • Disability Insurance through your Employer: If you have disability coverage at work, the benefits are usually not quite as good as the average private plan. Generally, you can expect to get about 50% of your take home pay on the low side, and upwards of 80% on the high side.
  • Workers Compensation Insurance: If you suffered a qualifying work-related injury or illness, you may be eligible for workers’ comp benefits. If approved, you should receive two-thirds of your pre-tax income.
  • Social Security Disability Insurance (SSDI): Social Security Disability pays benefits based on a complex formula, and it is usually significantly lower than your current income, especially if you are presently earning several thousand dollars a month or more. If you have a high income now and all you will receive for your disability is SSDI, you may have a strong argument for a child support payment modification.
  • Supplemental Security Insurance (SSI): SSI is a means-tested disability program for low-income claimants. Payments are very low compared to other programs, generally only enough to cover basic living needs. If SSI is going to be your only source of income, you will probably not be able to afford much (if anything) for child support.

Can you Work Something Out with the Other Parent?

If the other parent of your child is reasonable, you might be able to negotiate an arrangement with them rather than having to argue your case in court. Explain to them that you are no longer able to work, and what the difference in income will be now that you are disabled. You may even want to offer to spend extra time caring for your child or children in exchange for a lower support payment. If you are able to agree to something, make sure to have it formalized for your protection. Speak with an experienced family law attorney to have the agreement written up and brought to the court for approval.

Can your Children Receive Dependent Benefits?

Another option you can look into is whether or not your children can qualify for dependent benefits through the Social Security Administration (SSA). This may be possible if you are receiving SSDI benefits and your children are under 18, disabled, or 19 years old and full-time college students. If you are able to get your children approved for dependent benefits, the court may subtract the amount your kids are receiving from your child support obligation.

Have Further Questions about Child Support and Disabilities? Contact a Skilled Virginia Family Law Attorney

Child support can be a contentious and emotionally charged issue, and the courts have strong enforcement mechanisms in place to ensure that parents make their payments. If you have had a significant change in circumstance since your divorce or parentage case was finalized and you want to seek a child support modification, you need a seasoned family law attorney in your corner advocating forcefully for your rights and interests.  Call Olmstead & Olmstead today at 703-361-1555 to schedule a personalized consultation. You may also message us through our web contact form or visit our office in Manassas, VA at your convenience.

Making Healthcare Decisions for Children of Divorce

Making Healthcare Decisions for Children of Divorce

When there is a divorce involving children, the parents often have vehement disagreements about various parenting issues. One of the most common areas in which parents may not see eye to eye is with the health care decisions that must be made. Before the divorce is finalized, they might be able to agree on whose health insurance policy the children will be under, but when a specific issue arises, they often have different ideas about how it should be addressed.

Sole vs. Joint Custody in Virginia

The first consideration when there is a disagreement about a health care decision on behalf of the child is which parent has custody. There are two different types of child custody; physical custody and legal custody. Physical custody addresses which parent the child lives with primarily, and how often the non-custodial parent is able to visit the child. Legal custody deals with the ability of parents to make major decisions that affect the child. Healthcare decisions would fall into the area of legal custody, because it would be in the “major decision” category.

When One of the Parents Has Sole Legal Custody

If one of the parents has sole legal custody, then they are able to make decisions about routine medical care (e.g., physicals, dental checkups, eye tests, etc.) without consulting the other parent. In addition, either parent can make a decision about emergency medical care while the child is with them. However, if this is the parent who does not have sole legal custody, he or she must inform the other parent about the medical treatment the child received as soon as it is reasonably possible.

When Parents have Joint Legal Custody

It is becoming increasingly common in Virginia and throughout the country for parents to share legal custody of their children. The default position of the family courts is that it is generally in the best interests of the children for both parents to be involved in their lives. So, even in situations where one parent has primary physical custody of the child, they often have joint legal custody; giving them equal decision-making authority over areas such as education, religious upbringing, extra-curricular activities, and health care. 

In some cases, one parent may be given final decision-making authority over certain areas, with other areas going to the other parent. For example, if religious upbringing and education are more important to the mother and the child is on the father’s health insurance policy, the mother may decide which religion the children will be brought up and which school they will go to, while the father may to have decision-making authority for medical treatment.

In many joint custody arrangements, however, the areas of decision-making are not as well-defined, and it is expected that the parents will consult each other and work cooperatively and in keeping with the child’s best interest. And while they might start out with this intention, specific situations may come up in which a major disagreement may arise.

When the Parents Can’t Agree on Medical Treatment

Disagreements over healthcare decisions can lead to a standoff between two parents with the equal decision-making authority, putting professionals who are just trying to do their jobs in the middle of a parenting dispute. For example, the child injures his arm playing football. The mother wants the child to have surgery, but the father wants to pursue other treatments. Both have consulted equally-competent medical professionals who support their point of view.

How does this situation get resolved? Most likely, in one of two ways; the parents either work together to reach a solution both of them can live with, or one of the parents (probably the mother in this case) petitions the court to obtain full legal custody so she can go forward with the surgery. When the court gets involved, the results are unpredictable, and they depend largely on the viewpoint of the judge presiding over the case and the strength of the arguments presented by both sides.

Involved in a Child Custody Dispute in Virginia? Contact an Experienced Family Law Attorney

Parents with joint legal custody should be committed to working together to decide important parenting matters (based on their children’s best interests). And before going back to court, they should exhaust all other avenues and try to work out any disputes on their own. That said, there are times when there is little choice but to petition the court for a modification of the current custody arrangement. When that situation arises, you need strong legal counsel in your corner advocating forcefully for your rights and interests, and for the best interests of your child.  To schedule an initial consultation with the seasoned family law attorneys at Olmstead & Olmstead, call us today at 703-361-1555. You may also message us through our web contact form or visit our Manassas, VA office in person at your convenience.

What are My Rights as an Unwed Parent in Virginia?

When a child is born to an unwed mother, the father has no legal rights initially. Without being married to the child’s mother, there is no automatic presumption under the law as to who the father is. For unmarried fathers to establish parentage, the father must voluntarily declare his paternity in writing, and if it is disputed, prove he is the father through a DNA test.

Voluntary Acknowledgement of Paternity

If there is no dispute between an unmarried couple that they are both parents of a child that is being born, the easiest way for the unmarried father to establish parentage is to fill out a Voluntary Acknowledgement of Paternity (AOP) at the hospital at the time of the child’s birth. There is no cost to execute an AOP form at the hospital, and it does not impact any government benefits that either parent may be receiving. By executing and an AOP form at the time the child is born, the father’s name can be added to the birth certificate right away.

If you did not execute an AOP form at the hospital or birthing center, the form can be filed later with the Virginia Office of Vital Records for a small fee. Once the AOP form is properly filed, you become the legal father of the child, and your name is added to the child’s birth certificate.

Involuntary Establishment of Paternity

If there is any dispute about who the father of the child is, establishing paternity may require a court action. A Petition to Establish Paternity can be filed with the appropriate court by the mother, father, child, or the state of Virginia (if the child is receiving public assistance). For example, if the petitioner claims to be the father and the mother denies this, the petitioner can request that the court orders DNA testing.

DNA samples are taken from the mother, alleged father, and child and taken to a laboratory for analysis. This can establish with nearly 100% certainty whether or not the man being tested is the father of the child. If paternity is successfully established, the father may be required to pay child support, but he may also petition the court for child custody and visitation rights.

Child Custody and Visitation for Unwed Parents in Virginia

In many states, when there are unmarried parents, the default position of the court is to give custody to the mother unless the father takes action to gain custody. In Virginia, once paternity is established, the courts do not favor one parent over the other. Instead, they look at the best interest of the child.

That said, the court does give a lot of weight to the current situation, and who the primary caretaker of the child is now in determining who should have custody. So, assuming the mother is currently the caretaker of the child and has been for a while, the father would have to prove that she is not a good parent in order to take custody away from her.

If you have established paternity early on in the child’s life (e.g., within the first few years) it may be possible to obtain shared custody or at the very least, liberal visitation rights. Shared custody refers to physical custody of the child, and this is a co-parenting arrangement where both parents have the child for at least 91 days of the year.

There is also the matter of legal custody.  This refers to which parent has the right to make important decisions on behalf of the child; such as in the areas of healthcare, education, religious upbringing, and extracurricular activities. Parents may have joint legal custody, in which they must confer with each other on these important decisions, even if one parent has sole physical custody.

Speak with an Experienced Family Law Attorney

Unwed parents, especially fathers, face some challenges when they want to be involved in the lives of their children. Establishing paternity can be a complicated process, especially if it is disputed. And once paternity is established, you will often need to go to court to petition for custody or visitation rights.

At Olmstead & Olmstead, we understand the frustrations unmarried parents often face when they are trying to do what’s best for their children. We work closely with our clients, putting our experience to work to help them develop the most practical, effective, and cost-efficient legal solutions.   Call us today at 703-361-1555 to schedule a consultation. You may also message us through our web contact form or visit our office in Manassas, VA at your convenience.

visitation during the holidays

Visitation and the Holidays

The holidays are coming up, and this is the time when families want to spend as much time as they can with each other. This can create tension among divorced couples or couples living separately who have children together. Naturally, both parents want to have the child(ren) for the holidays, and the kids usually want to spend time with each parent.

When one parent has custody of the children, the other parent almost always receives visitation rights. There are rare cases involving issues such as abuse where a court may deny visitation or order limited/supervised visitation. Assuming this is a typical child custody/visitation arrangement in which the non-custodial parent is entitled to liberal visitation, a holiday visitation schedule should be put in place as part of this arrangement.

Holiday visitation is not a “one size fits all” arrangement. Each family has its own traditions, and the visitation schedule should be one that takes these and other specific circumstances into account. The arrangement should be fair to both parents, and hopefully one that everybody can agree on.

Here is an example of what a winter holiday visitation schedule might look like:

  • Thanksgiving Week (defined as the Wednesday before Thanksgiving through the Sunday after): The child(ren) spend this week with their mother in even-numbered years, and their father in odd-numbered years.
  • Christmas Eve through Christmas Morning: This period is spent with the mother in odd-numbered years, and the father in even-numbered years.
  • Christmas Morning through the Day After (12/26): This period is spent with the mother in even-numbered years, and the father in odd-numbered years.
  • New Year’s Eve through New Year’s Day Morning: This period is spent with the mother in odd-numbered years, and the father in even-numbered years.
  • New Year’s Day Morning through the Day After (1/2): This period is spent with the mother in even-numbered years, and the father in odd-numbered years.

This schedule would be similar for the other holidays during the year, such as Easter and the Fourth of July, with the mother and father having the kids during alternating years. A schedule would also be worked out for spring break, summer break, and the parents’ and children’s birthdays. Of course, the visitation schedule during holidays, school breaks, birthdays, and other special occasions must take into consideration various factors; such as the work schedules of each parent, the location of the two parents, how far away they live from each other, and many others.

When Holiday Visitation Conflicts with Regular Visitation Schedules

One common question that often comes up with visitation and the holidays is what happens when the holiday visitation conflicts with the regular visitation schedule? For example, a typical visitation schedule might have the kids spending every other weekend with each parent; e.g., Weekend A is spent with Mom, Weekend B with Dad, Weekend C with Mom, Weekend D with Dad, and so on. Referring back to the winter holiday visitation schedule example, what if this is an odd-numbered year and the father has the kids over Thanksgiving weekend, but Thanksgiving weekend falls on Weekend A, which belongs to the mother?

In this scenario, the holiday visitation schedule takes priority over the existing schedule. This means that the father would have the kids over Weekend A, because this is his year to have the kids over Thanksgiving. The next question is what happens the following weekend? Does the father get the kids again because Weekend B is his regular weekend? With most visitation arrangements, the answer would be “yes”.

This may seem unfair, but if you take away the father’s regular weekend for visitation, he would not be receiving any extra holiday time like he should. Also, this is likely to even out in future years. In other words, there will probably be a weekend in the future that is one of the father’s regular weekends, but according to the holiday visitation schedule, the mother gets the kids that weekend.

Visitation and the holidays can often raise questions and cause disputes, especially if the holiday schedule and the regular visitation schedule have conflicts. When these issues come up, it is important to take a step back and try to work out a reasonable solution with your ex. Remember, the holidays are a time when families are supposed to come together, so try to do what’s best for your kids, even if you have to make some small compromises along the way.

child support attorney

Can I Modify my Child Support in Virginia?

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.

Some changes may cause the non-custodial parent to struggle with their child support payment or provide the means to pay a higher amount. Examples include:

  • A job loss, promotion, or new job;
  • A significant increase in health insurance costs;
  • A significant increase in child care expenses;
  • A disability or severe health condition.

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.

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.

 

alimony attorney

Can I Modify my Alimony in Virginia?

When a marriage is dissolved in Virginia, spousal support is often awarded by court decree or negotiated into the settlement. Also referred to as alimony or spousal maintenance, spousal support is especially common in cases in which one spouse earns all (or the majority of) the income and the other does not have the skills or education to support themselves. Alimony may be temporary (for a specified length of time) or permanent, depending on the circumstances of the case.

As time goes by, circumstances often change, and one party (typically the payor spouse) wants to go back and modify the amount of spousal support they are required to pay. Examples may include a job loss, disability, illness, or another type of financial hardship. This is referred to as a “material change in circumstance.”

A new Virginia law that took effect July 1, 2018 made it easier to modify alimony when the circumstances warrant it. Under the new law, there are two major changes to the spousal support modification guidelines:

When the Settlement Agreement is Silent about Modification

Prior to July 1, if a divorce decree or marital settlement agreement was silent about whether or not spousal support could be modified, the presumption of the court was that an alimony award was fixed and not modifiable. Under the old law, many divorcing couples signed spousal support agreements with the assumption that they could be revisited later on if needed, only to find out that because the agreement did not address the issue, they were unable to modify the amount of alimony they were paying.

Virginia Senate Bill 614 amended the law to require explicit language in a separation agreement for spousal support to be non-modifiable. In other words, unless the agreement explicitly states that the alimony award is non-modifiable, the presumption will be that alimony can be modified based on a material change in circumstances. All agreements executed after July 1, 2018 are subject to these new guidelines.

Modification of Spousal Support in Retirement

In addition to clarifying the issue of modifiability, the new law allows retirement to be considered a material change in circumstance for the purposes of modifying an alimony award. The court is now required to consider six new factors with regards to modification of spousal support and retirement:

  • Whether or not retirement was anticipated and specifically considered at the time the alimony was awarded;
  • The terms and conditions of the retirement (e.g., voluntary or mandatory);
  • How retirement affects the incomes of both parties;
  • The duration and amount of alimony that has already been paid;
  • The age and health of both parties;
  • The property and assets of both parties.

A Word about Alimony and Taxes

At the end of 2017, Congress passed sweeping tax reform legislation. While most of the headlines focused on the changes to the corporate tax rate, hidden in this legislation was a major change to how alimony is treated for tax purposes. Previously, payor spouses were allowed to deduct their support payments on their federal income taxes, and payee spouses were required to claim it as income. The new law does away with the deduction for payor spouses and the requirement for receiving spouses to claim the income.

The changes in tax law at the federal level have the potential to harm both the payor and the payee spouse, depending on the specific financial circumstances of each party. The one piece of good news is that this provision of the tax code does not take effect until December 31, 2018. Any divorces finalized up until that date are subject to the previous alimony and tax laws, and divorces finalized on January 1, 2019 and thereafter are under the new laws. If you are considering divorce or have already begun the process, insist that your spousal support agreement be completed before the December 31 deadline.

Speak with an Experienced Virginia Divorce Attorney Today

If you are currently considering a divorce or you want to modify the alimony you are paying from a previous settlement, it is important to speak to an attorney with in-depth knowledge of these issues. At the Law Offices of Olmstead & Olmstead, P.C., we have extensive experience representing clients in divorce cases involving even the most complex financial issues. We have helped numerous clients negotiate favorable spousal support agreements and when necessary, petition the court for post-decree alimony modifications. We can thoroughly assess your circumstances to determine your best legal options, so you can make an informed decision.

For a personalized consultation with one of our skilled attorneys, contact our office today at (703) 361-1555.