Virginia child support law, cont’d

by Walter Olson on January 28, 2014

Following up on the mention of the issue earlier this month, “Virginia is on the verge of substantially increasing child-support obligations for the first time since 1988. But the proposed increase, which recently passed a legislative committee as a bill called HB 933, would result in excessive obligations for many parents, more unpaid child support and more jailings for nonpayment at taxpayer expense. Some noncustodial parents already pay more than 50 percent of their income in child support.” [Hans Bader, Richmond Times-Dispatch]

In an email, Bader adds:

Often, laws contain provisions that seem to be for the benefit of lawyers rather than the people.

Such is the case for one provision in the child-support bill HB 933, which will result in divorced parents fighting each other over pennies.

Right now, the custodial parent pays the first $250 annually in unreimbursed medical and dental expenses, rather than each co-payment and out of-pocket expense being divided up based on the parents’ share of combined income. But this $250 ceiling will be reduced to zero under the bill HB 933, which may result in angry parents fighting each other over as little as $10 (in some cases, with the assistance of a lawyer, in many other cases, without any lawyer at all), in order to try to get their ex jailed for contempt for not paying their share of the $10.

Certified mediator Diane Poljacik writes in an email (excerpted):

One of the reasons the $250.00 ceiling on health, dental and vision costs was put in place is said to be due in part to a number of frivolous show cause failure to comply motions being filed by the custodial parent against the noncustodial parent for not immediately reimbursing the other parent a $10.00 (or some other ridiculously low figure) co-pay (so called “nickel and diming” the other parent). This happens more often in cases where parents are constantly at war with each other. Removal of this provision could end up playing right into this by enabling warring parents to use this as just another way of trying to get the other parent jailed for contempt. …

If this provision is removed and show cause motions increase, it could potentially create a further burden for court dockets that are already overburdened. … No data has been presented thus far that states the judges are asking for this to be removed.

{ 6 comments }

1 Hans Bader 01.28.14 at 11:22 am

This bill has now passed the Virginia House of Delegates. Some Virginia parents already get jailed over ridiculous things, so the possibility of being jailed for contempt over non-payment of tiny sums cannot be discounted.

For example, Dave Briggman was jailed for paying his child-support in advance:

http://www.examiner.com/article/provision-child-support-bill-hb933-could-trigger-costly-fights-over-pennies

A bill to prevent that from happening again died in a committee in an 8-to-7 vote:

http://leg1.state.va.us/cgi-bin/legp504.exe?061+sum+HB840

Here is my lengthy explanation of why the proposed increases in Virginia child support are unwarranted and unjustified, rely on double-counting of expenses, and fail to properly take into consideration tax credits and benefits and recent changes in tax laws:

http://www.openmarket.org/2014/01/08/virginia-bill-hb-933-would-increase-excessive-child-support-obligations-by-ignoring-economic-realities/

2 Larry 01.28.14 at 7:42 pm

Bring it on.. massive noncompliance will force the system into collapse.
Stand outside the courthouses and tell everyone entering to force them to jail you..fill the jails and prisons and let them answer to the taxpayers

3 Helen Gregory 01.30.14 at 10:09 am

I am insulted that the State of Virginia allows mothers to bleed these fathers dry under the COP-OUT of doing what is best for the children, with absoutley NO requirement that the money is actually being spend on the children. The system treats dads no more than ATM machines, incapable of making financial decisions for their children. Dads may have shortcomings, but that doesn’t mean they are not good dads, that love their children and just want to be a part of their lives. Some moms make up false allegations about the father and do what ever they can to push the father away, but they want the money and the hell with the dad. Child support should be just that child support not life style support.

4 John L. Bauserman, Jr. 01.31.14 at 11:48 am

I am a practicing family law attorney who represents both fathers and mothers routinely. I have litigated cases in both the Juvenile and Domestic Relations Courts and Circuit Courts in the Commonwealth for more than twenty years. Hans Bader’s analysis is correct on all points. One particular point bears repeating: the current presumptive guidelines do not account adequately take into account the favorable tax treatment afforded to single parents with primary physical custody. These can be substantial, in the form of earned income credits for low income single parent households, favorable tax status for single parents who file as “head of household” which means one is taxed at a substantially lower rate, and of course the ability to claim a child as a dependent for federal and state tax purposes. For single parents with higher incomes, one is more likely to take advantage of additional benefits, such as medical savings accounts and child care savings accounts (sometimes referred to as “flex spending” accounts).

The proposed changes to the guidelines do not take into account the value of the tax benefits accruing to the parent with primary physical custody. Nor do the guidelines currently in place account for these savings. This is a serious omission and failing which is not adequately addressed by either the current guidelines or the proposed new guidelines. The new bill, HB 933, recently passed by the House of Delegates, does not remediate this shortcoming. The current law does contemplate the possibility of taking some tax savings into account in adjusting the support amount, but is grossly inadequate. From an evidentiary standpoint it is difficult for a non-lawyer to argue for a deviation from guidelines based on tax savings to the custodial parent. Even with an attorney, it is not easy to do because of the expense and time to properly prepare these arguments, which have only a modest chances of success anyway.

There are several good reasons not to support the new proposed legislation. I would suggest that the Virginia Senate should not consider the proposed child support increase in its present form without substantial study and consideration of how to properly account for the tax benefits accruing to custodial parents. Without this key component, Virginians will move no closer to achieving the fair and balanced child support guidelines which we all agree should our chief concern in any modifications to the current law effecting financial child support.

5 Kenneth Skilling 01.31.14 at 4:47 pm

One of the important underlying realities here is that, according to an October 2011 analysis of the Virginia Division of Child Support Enforcement’s database, 94 percent of noncustodial parents are fathers. In other words, this whole system is grotesquely biased against fathers. That bias goes a long way to explain the other inequities in the system. If custody were closer to being evenly balanced, the guideline amounts, and their enforcement, would look completely different.

6 Diane Poljacik 02.02.14 at 12:06 am

Mr. Burshem states “Both the existing and proposed guidelines reflect the total combined amount owed by both parents to support their children.” The reality is when guidelines are calculated, child support is not “owed by both parents”…it is in fact only owed by ONE parent without taking into consideration the time the child spends with that parent (until the parent has at least 91 days). One of the biggest problems with the current and the proposed guidelines is that they only take into account a share of the parents paychecks…NOT the shares of their parenting time, which is just as important, if not MORE important to the child. In fact, a quote from the OCSE page states: “Spending positive time with both parents promotes child well-being and is associated with better child support outcomes” and yet this is one fact that is consistently blatantly ignored in guideline calculations…until the parent has the child for at least 91 overnights per year. http://www.acf.hhs.gov/programs/css/resource/child-support-and-parenting-time-improving-coordination-to-benefit.
Even at 89 or 90 days (three months) of providing for the child, the paying parent does not get ANY credit for providing food, shelter, clothing, transportation, medical care, entertainment, daycare, etc for the child. These costs are taken into account when calculating the basic guidelines under the current and the proposed guidelines. The problem is that the ENTIRE amount of money it takes to theoretically raise a child based on both parents combined gross monthly income gets handed over to only one parent even when both parents have an active role in the childs life! So if one parent has the child under 90 days, the state pretends he/she has not spent a dime in feeding, housing, clothing, transporting, etc this child. This amounts to a double dipping for the one parent who is forced to pay the other parent to accommodate the entire cost of raising the child. The number of days a child is with each parent should be factored in immediately in ALL support cases for this reason. The share of parental time should have a higher priority than the share of the parents paycheck, yet the state is only concerned with the dollar amount being transferred from one parent to the other. The state should also MANDATE that tax credits MUST be factored into all child support equations in accordance with the parent who receives these benefits which in many cases are quite substantial. The state should be just as passionate about ensuring the rights of children to have as much access to each parent as they are about ensuring the children’s access to one parents paycheck.

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