Archive for the ‘Family Law’ Category

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What if child support was not paid?

Monday, March 28th, 2011

The order to pay child support is just like any other court order, it needs to be obeyed!

If the paying parent has not paid as directed in the order, the receiving parent can go to the court and file an ‘Order to Show Cause’ (which is shorthand for an ‘Order to show cause why you should not be held in contempt of court for failing to follow an order of the court’).

If there is a good excuse for not paying the support, the court may allow the paying parent extra time to make up the back payments. If there isn’t a good excuse for not paying the support, the court can send the ‘supposed to be paying’ parent to jail. Sometimes it might be for a weekend or two, but I’ve seen cases where the judge has sent someone to jail for 6 months or a year.

I also hear people tell me that they are owed thousands of dollars in back child support, but now that the child is 18, they think there is nothing they can do.

I don’t know about all states, but in Virginia unpaid child support creates a judgment that can be enforced by the courts and there really isn’t a limit as to how long the receiving parent can file against the parent that was supposed to pay. I’ve seen cases where the ‘child’ is 40 years old and the ‘supposed to be paying’ parent was brought to court for failing to pay and he was ordered to pay now or go to jail.

The moral of this story? Pay your child support!

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When does the obligation to pay child support end?

Saturday, March 19th, 2011

The easy answer to this question is….when the court said it ends.

Support for your children is more than a moral obligation, it is also a legal obligation that is described in an order of the court. The court order will tell you how much the child support payment will be and when it should be paid (for example, $400 a month to be paid on the first of each month).

The court order will also tell you when the obligation to pay child support will end. Generally in Virginia, child support is paid until the child reaches the age of 18, or the age of 19 if the child is still a full-time student in high-school.

Sometimes the parents will come to an agreement that child support should be paid while the child is enrolled in college or any other type of education. This is often done through negotiations during a divorce process and the courts will generally include the child support obligation in the final decree of divorce.

There are also situations where the child might have a special need so that everyone agrees that the child support should be paid for a longer period, or even for the life of the child.

The important thing to remember is to read the court order!

Just because your child has reached his or her 18th birthday does not necessarily mean that your obligation to pay support has ended.

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The basics of child support

Saturday, March 5th, 2011

The Commonwealth of Virginia has determined that the legal parents of a child are responsible for supporting that child. The Commonwealth also believes that a child should share in the lifestyle of the parents. What this means is that a family with a monthly gross income of $1,000 per month will pay much less than a family with a monthly gross income of $8,000.

Virginia makes the determination of child support very easy. Section 20-108.2 of the Code of Virginia actually has numbers which serve as the presumed amount that should be paid in child support. Parents can argue that they should be allowed to deviate from these figures, but this is where the discussion needs to start.

To use this ‘chart’ to determine child support, you first take the gross income of the mother and the gross income of the father and add them together to get the gross income of the family. Gross income is the amount before any deductions are taken for taxes, garnishments etc. In the case of military personnel, the gross income includes any amounts for BAH, BAS etc. You go down the far left column of this chart until you come to the row that holds the value of the gross income of the family (they rows are in $50 increments, so if your income is between rows, you might need to do a little adjusting). Now that you have the correct row, you go across that row to the column that indicates the number of children. Note that the support for two children is not double the amount for one child.

As an example, if Dad has a gross income of $3,000 per month and Mom has a gross income of $1,000 per month, the family income is $4,000 per month so you go to the row for $4,0o0. Assuming there are two children, you go to the column for two children and the presumed correct child support amount is $861 per month. This is the amount that the parents together should be providing for the support of the child.

Since our example has Dad making $3,000 out of the family gross income of $4,000 he makes 3/4 (or 75%) of the family income and Mom makes 1/4 (or 25%) of the family income.

You take the number in the table, $861 per month and multiply that by 3/4 to get an amount of $645.75 that is the responsibility of Dad and 1/4 of $861 to get the amount of $215.25 which is the responsibility of Mom.

If the kids are living with Dad, Mom will pay Dad $215.25 per month. If the kids are living with Mom, Dad will pay Mom $645.75 per month. Of course, if the family is all living together, there is really no need to even consider this!

There might be other adjustments to these figures, but this always the starting point, and when you go to court you always need to have the guideline numbers available for the judge to review.

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I lost my job….what about child support?

Friday, June 4th, 2010

This is a tough economy. Many people are losing their jobs, or being required to take a pay cut in order to keep their jobs. This is always a difficult time, but it can be a really bad time if you owe child support.

In Virginia, child support is based on the guidelines that are found in the Code of Virginia Section 20-108.2 and these numbers are based on the monthly gross incomes of the parents. Once the court orders the amount of child support, that amount stays the same until the court modifies the amount. Even if your income drops dramatically, the amount will not change until and unless you petition the court for a modification in the child support amount and the court makes a new child support order.

I’ve had clients who didn’t really understand this and just didn’t pay their child support payments for a few years. That’s right….a few years! I had one client that was injured on his job and not able to work but his child support stayed the same. The result, he owed over $40,000 in back child support! And interest on that amount.

If you’ve lost your job and you are ordered to pay child support, you really should consider filing a petition to have the child support amount redetermined. Losing your job would be considered a ‘material change in circumstances’ which should allow the courts to recalculate the amounts.

If you need help, give us a call at 757-234-4650.

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What can I expect as a divorce property settlement?

Friday, November 6th, 2009

Virginia uses what is called ‘equitable distribution’ to divide marital property at the time of a divorce. “Equitable” means ‘fair’, not necessarily equal.

In most cases where there aren’t any strong compelling arguments, the division of marital property will probably be equal (or close to equal) because that is also fair. But there are individual situations that can make a difference.

When you are getting a divorce, everything that you and your spouse own is viewed as one of three categories. It is either the Husband’s separate property, or the Wife’s separate property, or it is ‘marital property’. While this sounds simple, it can get quite complicated.

In general, any property that you owned before you got married, obtained during the marriage by a gift or inheritance, or you obtained after your separation, will be termed your ’separate’ property and will remain the property of the separate owner. (note that I said ‘in general’…It is very important to keep good records so that separate property can remain identified as separate.)

Anything else is termed ‘marital’ property. This ‘marital property’ is what most people fight about during a divorce.

It is also important to note that ‘property’ means anything of value and not just your house. That means that things such as your stamp collection, any retirement benefits, bank accounts, copyrights or patents will be divided between you.

Code of Virginia section 20-107.3 is the statute that provides direction for the property distribution. Paragraph E lists 11 criteria that the court uses when it makes the determination about how to divide marital property. As in many areas of the law, there is a ‘catch all’ criteria that allows the court to consider ‘Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.’

The best arrangement is for the parties to agree to a property settlement that they have negotiated themselves. It is quicker, cheaper, and probably closer to what each party really wants. But, if the parties cannot agree, the court will make a decision about the property division and the parties will be required to follow that court decision.

And the court’s decision will be ‘equitable’ based on all of the information that is available to the judge.

This is a very complicated area of the law that can seem deceptively simple.

Even if you have already come to an agreement with your spouse, it is always a good idea to have your own attorney review that agreement to make sure it contains everything that is needed legally to make sure the agreement can be enforced, and that your interests have been protected. After all, a settlement agreement is really nothing more than a contract, and you would always want to have any other type of contract reviewed before signing it…..right?

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