Posts Tagged ‘Family Law’

Can we just agree to change the child support amount?

Monday, December 2nd, 2013

I had a person in my office recently who said that he and the children’s mother had agreed to reduce the amount of child support he had to pay because he was laid off from his old job and his new job didn’t pay as much.  They even had a document that said the amount would be reduced, and it was notarized.  He thought their agreement would cancel the court order.

And then she took him to court for non-payment and he was charged with failure to comply with an order of the court which included a possible jail sentence of up to one year.

First of all, when the Judge issues that piece of paper telling you what to do… it is not a suggestion….it is not an example….it is not an ‘if you want to’ or ‘if you feel like it’.  It is an ORDER.  That means you have to do it or face consequences.

Secondly, having a document notarized does not make it more ‘legal’ than having a document that isn’t notarized.  Most of the time, a notarization just means that the person signing the document produced identification saying they were the person who’s name was on the document.  This may keep your girlfriend from signing your wife’s name, but it doesn’t make the document legal.

What they should have done was to go to court to file a motion to amend child support due to a material change in circumstances.  His change in employment status would probably have met the criteria for a material change, especially if both of them agreed.  Then the court would have recalculated the child support payment from the date of the petition.  You can also provide the court with a ‘Consent Order’ that says you agree to an amount even if that amount is different from the amount that would be calculated by the statutory guidelines.

Sure it takes time out of your day to go to court to get the amount changed….but it is probably worth it when you consider the amount of time you might be spending going to court on a show cause….and the possibility of going to jail!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Were you furloughed, and can’t afford to pay child support?

Saturday, October 5th, 2013

I get a lot of questions about child support obligations and the fact that the person ordered to make the payments has had his or her income reduced because of ___________ (there are lots of reasons, including the recent furloughs).

The most common reaction is that people just decide to not pay because they don’t have the money.  This is a BAD decision.

In Virginia, if you don’t make your child support payments, you can end up in jail for up to 12 months.  That’s right, you can go to jail for not making your child support payments.   And guess what happens to your child support obligation while you’re in jail?  It just keeps on going and your past due balance keeps getting bigger and interest on that past due balance keeps accumulating.  The hole just keeps getting bigger.

You can also have any tax refunds diverted to make a payment toward child support.  And your driver’s license may be suspended.

All in all, it is not a pleasant experience.

So, what are you supposed to do if you’ve been furloughed, fired, or laid off, or you just can’t find a job and your income has been reduced?

First of all, you should know how child support is calculated to see if your reduced income will make a difference.  I wrote a post here about how to calculate child support and  here about where to find a calculator online.

If it looks like your reduced income will make a difference, you should contact the Juvenile and Domestic Relations  District (JDR)  court where the last court order was entered that told you to make child support payments.  Ask them about the procedure for submitting a petition to amend child support.

If your case was done through the Division of Child Support Enforcement (DCSE), then go to the office where your case is being handled and ask for a reconsideration and recalculation.

If your child support obligation was set during a divorce proceeding, you need to check the final decree of divorce to see if the matters concerning child support have been transferred to the JDR court.

It is sometimes confusing, so it might be a good idea to at least have a consultation with an attorney about what to do.  We often have people come into the office for a consultation and we are able to give them enough information for them to complete the process on their own.

You also want to be sure to make some sort of payment on your child support even if you can’t make the entire payment each month.  This shows good faith, and it will also help minimize the past due amount that is being charged interest.

What you do NOT want to do is just ignore the fact that your income has been reduced and you can not make your payments.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Will I get custody if I have a bigger, nicer house?

Sunday, February 10th, 2013

That’s not exactly the question I got this week.  Instead, the actual question was about whether parents with shared physical custody needed to have comparable living arrangements.  Although I must admit that I’ve had the question that is the title of this blog post in the past.

The short answer to both of these questions is ‘NO’.

There is no requirement in VA that the children be given their own rooms, or that they be provided a home with a yard for outside play.  Also, there is no requirement in a shared custody arrangement that the homes be comparable.

Each of the homes must be ‘appropriate’ for the children.  But appropriate can encompass a lot of differences.  The main thing that is reviewed is whether the child has a safe place to sleep (so we generally look for a bed in a bedroom instead of a recliner in the living room), whether the home appears to be safe (no hanging open wires or holes in the walls), whether the home is relatively neat and clean (although ‘messy’ may be ok, dirty or filthy is usually not ok)….basically safety issues.  It is not necessary to have separate bedrooms for each of the children, although we would tend to discourage putting children of opposite sexes in the same room once one of them reaches the age of puberty.  Again, safety issues.

I know that when I grew up we had a three bedroom home with a ‘parent’ bedroom, a ‘girl’ bedroom and a ‘boy’ bedroom with the ‘baby’ staying in the parent room until he or she was able to consistently sleep through the night so as not to interrupt the other siblings.  From my experience this was the norm in my community and very few children had their own bedroom, unless they were the only child of that gender in the home.

There are also many cultural differences and what is acceptable in one culture is not necessarily acceptable in another, but that is a personal choice of the parent as long as the child is safe.

A big yard is also not required, so long as the parent has the ability to take the children to a place where they can have outside play.  To be quite honest, many families do not take advantage of their backyards for playtime and instead the children may spend more time at a park where they can play with their friends.

The relative financial position of the parents and the ability of one parent to provide a more luxurious home environment is not as important as the interaction between the parent and the child.  We’ve all seen children who have lots of toys and really enjoy playing with a box.  Also, financial disparity is addressed through child support, not custody and visitation.

What does the Commonwealth of Virginia look at when determining custody?  I’ve written a couple of blog posts here and here that go into the details of what the courts consider.  And of course you can review the actual code section here.

Bottom line?  The courts don’t really care who has the bigger home or the nicer furniture or the best car.  Assuming that the child’s safety is not an issue, what is important is the interaction of the child and the parent.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Calculating Child Support In Virginia

Saturday, January 12th, 2013

A few years ago I wrote a blog post about how to calculate child support in Virginia (see the post here).

Basically, Virginia has decided that a child should be able to share in the standard of living of the parents and the parents’ gross monthly income is used as a means of determining that standard of living.

Virginia also recognizes that some things are going to cost the same whether they are used by one child or 3 children, so the child support obligation is a ‘unitary’ obligation for the total number of children and not a set amount for each child.  For example, a family income of $5,000 per month yields a total child support obligation of $666 for one child, $1036 for two children (an increase of $370 for the second child), $1295 for three children (an increase of $259 for the third child), etc.  Whether you like this idea or not tends to depend on whether you are paying or receiving the child support payment, and whether you are just starting your child support obligation or your child is reaching the age at which a child support payment is no longer required.

The mechanics are still the same as when I wrote the previous post and the support numbers are still available in the Code of Virginia at section 20-108.2.  And there are still a number of specific details that might cause your individual case to be calculated just a little bit differently.

What has changed is that there used to be a lot of places online where you could find a child support calculator.  Notably, the Department of Social Services used to have an online calculator and consumers could go there to get an estimate of what they might receive, or what they might be ordered to pay.  There is still a menu item on the DSS website pointing you to a page to calculate Child Support.  However, that page now tells you that they no longer provide the calculator and you should search on the internet for a place to purchase software to do the calculation for you.

I’m an attorney, and I calculate child support every week, so it might make sense for me to purchase the software.  However, you might only want to calculate child support once a year at most and it doesn’t really make sense for you to purchase anything.  So I wanted to see if I could find a place on the internet to send my clients who were wanting to figure out what might happen to their child support if they got a raise (or a reduction) in pay.

My new favorite place to find Virginia online child support calculations is by going to SupportSolver.com.

A parent who doesn’t deal with child support all the time may not know what goes into each specific line, but they can always just enter the basic income information and get a good starting estimate of the support amount.  Reading the line items on the form can also be a good tool for forming questions to ask your attorney when you meet to discuss child support.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Can I terminate my child’s father’s parental rights?

Saturday, October 15th, 2011

I get this question fairly often.  It is usually from a mother who also says that the father has no contact with the child at all and he hasn’t paid any child support.  Often, there is a comment that the father is in jail for some reason or another, and perhaps there is an order of protection for both the mother and child to keep the father away.

I’m not entirely sure why they want the father’s parental rights terminated.  If the father is not in the picture at all, then he is not a problem to either the mother or the child.

If the mother wants to make sure that she is the only one making any decisions for the child, she can always file for full legal and physical custody with no visitation, or very limited, or only supervised visitation from the father allowed.  If the father is really as absent as the mother says, he is not likely to argue against her and it is likely that the court will award her full custody.  If the father is actually in the picture, but a detriment to the child, then the court may order only supervised or no visitation with the child.

If the father objects to the full custody being given to the mother, he can argue that in court and the court will make a determination based on the best interests of the child.  The Commonwealth of Virginia is interested in doing what is best for the child, not supporting one side in an argument between the parents.

Also, so long as the father is the legal father, the mother can be awarded child support which must be paid by the father.  If the father does not pay his court ordered child support, he might be put in jail for that failure.  Again, not really a problem for a mother who apparently does not even like her child’s father.

If the mother is married to someone who is not the child’s father and she wants to have her new husband adopt the child, a step-parent adoption process can be followed which will end up as a sort of termination of the father’s parental rights when the father agrees to the adoption, or if the adoption is approved without the father’s consent.

There is also the situation where the mother wants to terminate a father’s parental rights because the mother is receiving social services and they have told her that they will go to court to have the father ordered to repay the public funds as child support.  The mother wants to receive the funds, but she does not want the father to have to pay.   And yes, sometimes the father is living in the home with the mother and the children.

The Commonwealth of Virginia has determined that it is the obligation of both parents to provide for their children.

So the short answer to the question of whether you can terminate your child’s father’s parental rights is generally ‘no’.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.