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How Do Child Custody and Support Work in a Virginia Divorce? | Virginia Law Help

How Do Child Custody and Support Work in a Virginia Divorce?

Read this in: Español

Reviewed by: Valerie L'Herrou

Before a judge will finalize your divorce, you must have either a signed agreement or a court order that covers custody, parenting time, and child support. You and your spouse cannot agree to skip child support entirely. The law requires it, and the court will not finalize your divorce without it.

Before you file for divorce, you will need to figure out the amount of child support to be paid. This may be decided by a JDR (Juvenile and Domestic Relations) court, by the Division of Child Support Enforcement, or by you and your spouse. But first, you need to decide about custody and parenting time. The amount of child support depends partly on how much time each child spends with each parent.

Does child support have to follow a set amount? 

Virginia law sets a specific formula for calculating child support. It is possible to agree on a different amount, but only if the court approves it. If you submit an agreement that does not follow the required formula, the court may reject your divorce filing.

If you want to agree on a different amount, your agreement must include a reason the court will accept.

Note: If the parent who pays support is unemployed or underemployed, meaning they work at a job that pays less than they could earn, the court may impute (assign) income to that parent. This means the court may require them to pay more than the formula requires, based on what they could be earning.

How do we decide on custody? 

Before you or a court can calculate child support, you need a parenting plan that shows how much time each child spends with each parent. This will be an important factor in dividing up the amount of support. 

Many couples decide on custody based on which parent already spends the most time caring for the child, which parent travels a lot, or which parent has more experience with the children. It is important for children to have a good relationship with both parents. It also helps for parents to have a workable relationship with each other.

If you ask the court to decide custody, you may end up with an order that neither of you wants. The court will most likely require you both to attend parenting classes and mediation. The court must make all custody decisions by keeping in mind what is in a child’s “best interests,” and how each parent supports the child’s relationship with the other parent is one of the factors the court considers.

What is the "best interest of the child" standard? 

When a judge makes any decision involving your child, including child support, custody, and visitation, they must focus on one thing: what is best for the child. This is called the "best interest of the child" standard.

Judges are not supposed to favor mothers over fathers or any one type of family. They look at the full picture of each child's life and each parent's ability to care for them.

Read more: How Does a Judge Decide Who Gets Custody?

How is child support calculated? 

The amount depends on several factors: both parents' incomes, how much time the child spends with each parent, the child's specific needs, and whether either parent is already paying support for other children.

Virginia has a free online calculator you can use to estimate your amount.

To get an accurate calculation, you will need the following information:

  • Each parent’s monthly gross income
  • The amount of time each child spends with each parent
  • Any other children who are not subject to the order who live with each parent
  • Any child support paid for another child under a different order
  • Any spousal support paid between the parents
  • Any spousal support paid to a different former spouse
  • Any amounts deducted from income
  • Health, dental, or vision insurance coverage paid for by either parent
  • Work-related childcare paid by each parent
  • Any disability payments received for a child

What information about support and custody do I need to include in my divorce paperwork? 

Before you start your divorce paperwork, all issues about custody and child support must already be decided. You will need to gather the following:

  • Names, birthdates, and Social Security numbers of all children of the marriage
  • Your agreement or court order on custody and parenting time. If there is a court order, you will need the name of the court that issued it and the case number.
  • The amount and frequency of child support payments, as set by court order or agreement. If there is a court order, you will need the name of the court and the case number.
  • The date the first child support payment is or was due
  • Any arrears, meaning support that was owed but not paid
  • Any overages, meaning amounts paid above the court-ordered amount, and how you have agreed to handle them

"Children of the marriage" means children born or adopted before or during the marriage, or after separation, as long as both parents are the legal parents. If a child is born during the marriage, both spouses are generally considered the legal parents.

Note: If another person claims parenthood of a child, or if one spouse does not believe a child is theirs, this must be resolved before filing for divorce. A parent generally cannot claim later that a child named in the divorce is not their child.

Can you change child support later? 

Yes, you can change child support later, but only if something significant has changed in your situation. Examples include losing your job, becoming disabled, or a major shift in either parent's income.

To change your order, you file a Motion to Amend with the court. Do not stop paying or pay less on your own without a new court order. If you do, the old amount keeps adding up, and unpaid support cannot be reduced or erased later.

Read more: How to Change Your Child Support Order in Virginia

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