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.

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.

  1. 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.
  2. Order to reopen your divorce case
    A judge reviews the information in your form and signs an order.
  1. 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.
  1. Modified child support order
    A judge must sign the modified and new provisions of your child support for them to apply.
  1. 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.

 

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.