by Michael F. Callahan

Child support can be modified in Virginia post-judgment if there has been a material change in circumstance since entry of the order setting child support.  Section 20-108 of the Code of Virginia provides that the court may modify child support or custody as the changed circumstances of the parents and the benefit of the children may require.

The Court can act upon the petition of a parent, a probation officer or the Department of Social Services, setting forth the reasons for the relief sought.  The court can also act on its own initiative but this is something we have never seen.  Support can be retroactively modified only from the date that notice of the pending petition requesting modification has been given to the other party.

The Maryland Office of Child Support Enforcement (OCSE), telephone 800-332-6347, provides various services to child support claimants.  It’s free after a nominal registration fee and can be effective in straightforward cases, especially if the child support payor is earning wages or salary from a Maryland based employer.   If your case is more complicated and time-consuming, well, OCSE has a big caseload and it may be a while before they get to it.

 

 

Child support can be modifiedChild support can always be modified. This right cannot be altered.

The parties to a marital settlement agreement can preclude later changes by the court for most provisions. For example, they can agree on non-modifiable alimony, and then no court can modify it at any time for any reason in the future.

However, the same cannot be said for parties child support. No matter what the parties say in their agreement, child support is always modifiable by the court.

If your spouse agrees to no child support in return for transfer of the house, and you transfer the house, can child support later be claimed?  Yes, child support is not the parent’s claim to waive. It belongs to the children. Similarly, an agreement that a certain child related-expense will not be covered, like orthodontic services, is not enforceable.

by Michael F. Callahan

You need solid information upon which to base a claim for modification of child support.  So when we represent payees we generally include a requirement to exchange tax returns or annual income documents like W-2’s and 1099’s annually or bi-annually.

If you are being paid child support, and don’t know whether the payer’s income has increased, it’s sometimes risky to proceed on mere suspicion rather than solid information.

And if  your income has decreased that may not help because the child support payee’s income does not change support amount much at most income levels under the guidelines adopted in 2010 by Maryland.

If, on the other hand, you are paying child support, and the payee’s income increases, and therefore you think the payee does not “need” all of the originally ordered support, you may not be successful in reducing child support under the revised guidelines.

You can modify child support after divorce in Maryland if there has been a material change in circumstance since entry of the Order setting child support.  The applicable MD statute is Section 12-104 of the Family Law Article which provides

Modification of child support

(a) The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.

Modification not retroactive

(b) The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.

Material means 1) relevant to child support and 2) of sufficient magnitude to justify a change.  There is no bright-line cut-off stating any required minimum change in support.   Obviously, the process requires time, effort and money, so minor increases or decreases may not be worth pursuing.

Since 2011, Louisiana has collected more than $2 million in child support from intercepting the winnings of non-custodial parents at the state’s 19 gambling casinos.

Other states with similar laws include Colorado, Mississippi, Illinois, Indiana, Iowa, New Jersey, New Mexico, Ohio and West Virginia.

Clermont County, Ohio, has found a more practical solution than putting parents who can’t pay child support in jail.  It finds them jobs.

Ohio was hit hard by the recession.  The jobs program, called Success Through Employment Program or STEP, was started in 2007 with a grant from the Ohio prison system.  It has a 47% placement rate.

Once the parents find a job, they are able to help support their children, which makes a lot more sense than putting them in jail.

The average cost of raising a child to age 18 is $245,340 for a two-parent, middle-income family, according to the U.S. Department of Agriculture.

And that doesn’t include costs for giving birth or paying for college.  The annual calculation includes housing, food, transportation, clothing, health care, child care, education and miscellaneous.

If you add in 2.4 percent projected inflation, the cost is $304,480.  The estimate rose 1.8 percent from last year.

Clifford Hall, 43, of Houston was sentenced to six months in jail for failure to pay child support.

After exhausting his appeal rights, he turned himself in and began serving his sentence last week.

But then AT&T, his employer, provided an affidavit that it had withheld the incorrect amount from his paychecks.

He was released from jail.

When separated spouses in Maryland and the District of Columbia require the aid of the court to resolve issues of support or custody they know where to file their case – in the local Circuit Court in Maryland and in Superior Court in the District of Columbia. And if they have been separated for less than the period required for an absolute divorce, they can include a request for limited divorce (legal separation in DC) in the support and/or custody suit.

Not so in Virginia. The circuit courts are the trial courts of general jurisdiction, and are the trial courts preferred by lawyers, including family lawyers. But the court with jurisdiction of minors, including custody and support of minors, and support of spouses, is the Juvenile & Domestic Relations District Court (“JDR”). The Circuit Court only has concurrent jurisdiction over these matters if there is a divorce case pending. And, unlike in Maryland and DC, when the spouses have been separated for less than the required period (one year in general, six months with a written separation agreement and no minor children), a complaint for limited divorce is often not an option because in Virginia there aren’t any no fault grounds for limited divorce (called divorce from bed & board or, in Latin, a mensa et thoro ).
In this situation, the spouse needing custody or support relief faces a choice. He or she can:

1. File a petition requesting custody and/or support relief in JDR;

2. Assert fault grounds and file a complaint for divorce from bed and board and for the custody and/or support relief in Circuit Court; or

3. Wait the one year period and then file a complaint in Circuit Court for final divorce (called divorce a vincula matrimonii) on separation grounds and for the custody and/or support relief.
Each of these choices has advantages and disadvantages which I will address in my next post.