How to File for Child Support in Virginia

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Child Support & Custody Cases Aren’t Always Fair

Perhaps one of the most frustrating aspects of the practice of child supportchild custody law is when we see a travesty of justice occur, but can do little to correct it. Client-modified child custody and child support orders often lead to such travesties. While we may not be able to fix what’s broke, we at least can warn about it.

Child support and child custody orders are an area of the law that operates on some pretty hard and fast rules. If the rules are known, and followed, then by definition, no injustice will occur. But when the rules are unbending, while at the same time not well known to the general public, some very sad results can follow.

The results that follow when parents try to modify their Virginia child support payments, for instance, without following “the rules” can be devastating to short and long-term planning.  Please read on to get an idea:

Rule: A child support case is fully within the control of the courts. Once a division of child support has been ordered by a judge, the parties cannot effectively change it without another court order.

Stated another way – no matter the circumstance, if a custodial and non-custodial parent agree to change a court’s order on child support payments, take the agreement to a judge who has jurisdiction to decide matters such as these and ask the judge to make the agreement an actual court order.

Stated another way – if it’s not in a court order, it’s probably not enforceable, no matter how unfair the result.

(Q1) My ex-wife is the custodial parent of my children. I was ordered to pay $500 per month child support by the divorce court. Several years after our divorce, my overtime hours were cut way back. I could not afford to pay the $500. My ex was very understanding and we agreed that under the circumstances, $300 would be a fair amount, and that there was no reason to go to court. That is what I have been paying ever since. Now, four years later, she has decided to sue me for $9,600 ($200 times 48 months), plus interest. She cannot do that can she?

(A.) Yes she can, and she will probably win.

(Q2) My ex-wife was the custodial parent of my son. I was ordered to pay $200 per month in child support payments. She remarried. About five years ago, when she was having some domestic problems with her new husband, I agreed to take custody of my son. Of course, she also agreed that during the time my son lived with me she would not ask for the court ordered child support. We had nothing in writing. Turns out that I had him for almost 4 years. I returned my son to her a year ago. I recently said something pretty nasty about my son’s current living arrangements, and that I was considering asking the court for his custody back. Now she has decided to sue me for $9,600 ($200 times 48 months), plus interest. She cannot do that can she?

(A.) Yes she can, and she might win. And you won’t be able to counter sue for any support during the time you had him in your care.

(Q3) My ex-husband is the custodial parent of my children. He left town with my kids, and didn’t tell me where he was going. All my efforts to locate him proved fruitless. I decided to stop paying the child support (after all I didn’t have his address and I didn’t know where to send it). Now four years later he has surfaced. I have demanded to see my kids again, and am trying to rebuild our relationship. He is not happy about that. Now he has decided to sue me for $9,600 ($200 times 48 months), plus interest. He cannot do that can he?

(A.) Yes he can, and he will probably win.

(Q4) My wife and I separated and we agree that she would get custody of the kids. We went to court on the child support payment issues and the judge ordered me to pay $200 per month. We then reconciled. We stayed together for four year before things got so bad again that we had to separate. We agreed that she should continue as the children’s custodial parent. I started dating someone else, and it made her mad. Now she has decided to sue me for $9,600 ($200 times 48 months), plus interest. She cannot do that can she?

(A.) Yes she can, and she might win. This one has a lower of a chance of success than the others, but why risk it? Get the picture? Need more examples? We trust that we have made our point, but here is one more anyway.

(Q5) My ex-wife and I had 2 children. When we were divorced, they were ages 16 and 12. I was ordered to pay $500 in Virginia child support payments per month for both of them. When the older child turned 18, we agreed to cut the child support payment to $300 per month for the remaining child, and did so for the remaining four years before she turned 18. My ex-wife earns a lot more than I do, and I have new children by my second wife. I told my ex that I would not be able to help pay for the second child’s college education. Now, she is suing me for $9,600 ($200 times 48 months), plus interest. She cannot do that can she?

(A.) Yes she can, and she will probably win.

So repeat after me: No matter what your situation is, get it in writing and get it approved by the judge. If you and the other parent work out a side deal regarding a decrease in child support, and don’t have it approved by the court, it is generally not enforceable. Get and agreement and have the court bless the agreement. (Scenarios 1, 2 & 4, above.)

If you want to flush out the custodial parent who has disappeared, go to the court to have the child support stopped on the basis of a changed circumstance. (Scenario 3.)

Without prior court approval you probably will not succeed in getting a private contract or unilateral action regarding child support enforced by the court. Since you probably won’t win, don’t take a chance.

Is this warning sufficient?