Child Support in West Virginia

Both Parents Pay Child Support

In West Virginia, both parents are responsible for the care and support of their child. The amount of child support you have to pay or will receive depends on the number of children you have and the combined income of both parents. In West Virginia, the state has guidelines to determine a fair and reasonable amount of child support based on these two factors. Parents can choose to pay more than the amount determined by the guidelines, but only a court may reduce a payment.

Just because both parents share the cost of raising a child, that doesn't mean they have to send checks to each other. In almost every case, one parent will make payments and the other will receive them. Usually, the parent receiving payments is the one who the child lives with most of the time. It's assumed that the receiving parent already pays costs related to the child on a daily basis.

The paying parent, however, doesn't pay the total child support amount calculated under the guidelines. Instead, each parent is responsible for a percentage of the total amount, in proportion to their income. (See West Virginia Code §48-13-201.) So the parent who has more income pays the higher percentage.

For example, let's say Parent A makes $400 a month, while Parent B makes $600. Combined, their monthly income is $1,000. So, based on the income apportionment theory, Parent A is responsible for 40% of the child support amount, and Parent B is responsible for 60%. If the child lives primarily with Parent A (the custodial parent), and because Parent A has the smaller income, that parent will be receiving child support from Parent B (the non-custodial parent). Hypothetically speaking, let's say the total child support obligation based on both parents' income is $300 per month. Parent A is responsible for 40% of that amount—$120. So Parent A will receive $180 per month from Parent B—$300 minus the $120 Parent A is responsible for.

Note also that child support orders will address providing health insurance for the child. Additionally, the court will add to the basic child support obligation any unreimbursed child health care expenses, work-related child care expenses, and any other extraordinary expenses agreed to by the parents or ordered by the court. These costs are normally pro rated between the parents, based on income.

What Constitutes Income for Child Support?

To find out what your percentage of child support will be, you must know the gross income and adjusted gross income of both parents. Gross income is all earned and unearned income. This includes wages or salary, commissions, bonuses, tips, and profit sharing. It can also be interest earned on a particular asset (a savings account for example), business expense accounts, and stock dividends.

Even if you haven't earned a paycheck for a while, it's likely you still have gross income, such as social security benefits, unemployment benefits, workers' compensation, or spousal support (alimony) received. Depending on the circumstances, the court could also include severance pay, and gifts and prizes. A court might look at other income sources as well. When deciding what income will be included, a court will look at whether this money would have been available to help raise the child if the family had stayed together or, in cases involving a birth out of marriage, if the parents and child had formed a household.

Gross income doesn't include:

• Income received by other household members such as a new spouse
• child support received for the children of another relationship
• means-tested assistance, such as temporary assistance for needy families, supplemental security income (SSI), and food stamps, and
• a child's income, unless the court determines that the child's income substantially reduces the family's living expenses.

For more detailed information on gross income, see West Virginia Code §48-1-228.

Adjusted gross income is your gross income minus any previously ordered child support, spousal support (alimony), or separate maintenance. (West Virginia Code §48-1-202.)

Once you know the adjusted gross income for both parents, you will use a mandatory worksheet to find your specific amount due.

Imputed Income for Child Support

If a court finds that a parent isn't earning to capacity, it can attribute (impute) income to that parent. (See West Virginia Code §48-1-205.) In other words, the court can base that parent's child support obligation on what the parent should be earning, rather than actual current income.

In making its determination, the court will decide whether parents:

• Voluntarily left employment or altered their employment pattern so as to be unemployed, underemployed, or employed below full earning capacity
• are able to work and are available for full-time work for which they are fitted by prior training or experience, and
• aren't seeking employment in the manner that a reasonably prudent person in their circumstances would do.

If, for some reason, the court is unable to obtain needed information on the parent's work history, it can, at the very least, base attributed income on full-time employment (at forty hours per week) at the federal minimum wage in effect at the time the support obligation is established.

Note that in order to attribute income, the court doesn't have to find that a parent's income deficiency was motivated by a desire to evade a child support obligation.

Of course, there may very well be legitimate reasons for a parent's not earning to capacity. The law recognizes this, and indicates that income shouldn't be attributed if any of the following conditions exist:

• The parent is providing care required by the children to whom both of the parents owe a legal responsibility for support, and such children are of preschool age or are handicapped or otherwise in a situation requiring particular care by the parent.
• The parent is pursing a plan of economic self-improvement which will result, within a reasonable time, in an economic benefit to the children to whom the support obligation is owed, including, but not limited to, self-employment or education, provided that the parent is making substantial progress toward completion of the program.
• The parent is, for valid medical reasons, earning an income in an amount less than previously earned. Or
• The court makes a written finding that other circumstances exist which would make attributing income unfair.

The court may also attribute income to a parent's non-performing or under-performing assets (other than the parent's primary residence). Assets may be considered to be non-performing or under-performing to the extent they don't produce income at a rate equivalent to the current six-month certificate of deposit rate, or such other rate that the court determines is reasonable.

How to use the West Virginia Guidelines: the Worksheets

West Virginia's child support guidelines are simply a formula. You plug in your number of children and both parents' adjusted gross income to come up with the basic child support amount. It would cause less math-induced anxiety, perhaps, if the calculations ended there, but the result wouldn't necessarily be fair. To arrive at an amount that accommodates the particulars of each parent's financial life and the child's needs, a court will consider other factors.

To assist you in calculating child support, West Virginia provides worksheets. These aren't just an accommodation—you're required to use them, even if both parents settle on a child support amount between themselves.

In a standard "shared parenting" arrangement, which is where one parent has the child less than 35% of the year/127 days, (see West Virginia Code §48-1-239), you'd use Worksheet A (West Virginia Code §48-13-403.)

You also use Worksheet A in cases of "split custody". Split custody means the parents have two or more children, and each parent has primary custody of at least one of them. (See West Virginia Code §48-1-241.)

For example, mom has primary custody of the older child and dad has primary custody of the younger child. In those cases, the court will make two separate child support orders—one for each parent. The court then compares the two orders, and if one parent owes more child support than the other, that parent pays the difference between the two. So, if mom owes $500 a month to help dad support the younger child, and dad owes $400 a month to help mom support the older child, in the end mom pays dad $100 per month (the difference between $500 and $400).

In an "extended shared parent custody" arrangement, each parent has the child for more than 35% of the year. (See West Virginia Code §48-13-501.) With this scenario, you'd calculate child support using Worksheet B. (West Virginia Code §48-13-502.)

You can find the basic child support schedule here. (West Virginia Code §48-13-301.)

Adjusting the Payment: Deviating From the Guidelines

There's a presumption that the amount determined by the guidelines is the right amount. However, you can try to rebut that presumption and convince a court to either reduce or increase the amount of child support. To be successful, you'll have to show that the support obligation under the guidelines is unjust or inappropriate given the child's needs or either parent's circumstances. (See West Virginia Code §48-13-702.)

Some common factors a court will consider before adjusting payments up or down include:

• the child or the paying parent's special needs
• the child or the parent's educational expenses
• families with more than six children
• long-distance visitation costs
• whether the child lives with someone besides a parent
• whether the parent pays child support for another child
• whether the paying parent has consistent income, and
• whether the total of spousal support, child support, and child care costs leaves the paying parent below the federal poverty level.

You might be wondering if there are exceptions for parents with either lower or much higher income. If the adjusted gross income of both parents is below $550 per month, then child support will likely be $50 a month. If the adjusted gross income of both parents is above $15,000 a month, then a court could increase payments depending on the income amount above $15,000.

Also, if the paying parent has an adjusted gross income below $1,550 a month, then it's possible that the amount of child support will be less than what the guidelines propose, if the court approves it. To find out what the adjusted amount might be, use Worksheet A and fill in both Part 1 and Part 2.

How Is Child Support Paid in West Virginia?

Most child support orders call for payments to be made through income withholding. Your employer will withhold the amount of child support from your paycheck, and forward it to the Bureau of Child Support Enforcement (BCSE).

The BCSE can apply withholding to a variety of other sources of income, such as workers' compensation, unemployment compensation, pensions or annuities, and to Social Security for certain benefits.

If the court orders the BCSE not to collect by way of income withholding, you can mail a check or money order to the agency. Provisions are also in place for you to pay by credit card or e-check.

If you receive child support, you can opt to have the BCSE direct deposit your support payment into your bank account. In lieu of that, they'll issue you a debit card, and will apply the paid support amount to that card each month.

If you don't have an income withholding order, then you can accept payment via check, bank transfer, or using payment apps such as Venmo.

Modifying a West Virginia Order

Once a child support order is in place, either parent can ask to change it at any time. If it's been less than 36 months since the court awarded payments, then the parent would have to show there's been a substantial change in circumstances. Substantial changes are caused by events like the loss of a job, or even a promotion.

It could also be a shift in who has physical custody of the child, or in a child's needs. Additionally, under the law, if application of the guidelines would result in a new order that varies from the current order by more than 15%, the court would consider that a substantial change. (See West Virginia Code §48-11-105.)

Under certain circumstance, the court could expedite the modification process. (See West Virginia Code §48-11-106.)

If the support order has been in place for at least 36 months, then you can ask for a review of the amount. In fact, the BCSE should contact you every 36 months to remind you that you have that right, even if there hasn't been a substantial change in circumstances. (See West Virginia Code §48-18-126.)

For general information on modifying a child support order, see the article How to Increase Child Support Payments.

Termination of Child Support

Ordinarily, the obligation to pay child support will end when a child reaches the age of 18. However, payments of support will continue past the age of 18 if the child is unmarried and residing with a parent, guardian or custodian, and is enrolled as a full-time student in a secondary educational or vocational program and making substantial progress towards a diploma. That said, child support payments can't extend past the date the child reaches the age of 20. Be aware that the rules may be different for children who are handicapped or disabled. (See West Virginia Code §48-11-103.)

Note that although the circumstances for terminating child support may exist, that doesn't relieve you of your obligation to continue paying any past due child support amounts (arrearages).

Enforcing Child Support Obligations in West Virginia

If you're delinquent in paying child support, the BCSE has a number of methods at its disposal to enforce payment. Depending on the amount that's past due, some of those methods are:

• reporting you to a credit bureau
• asking the Internal Revenue Service (IRS) and State Treasurer to seize your federal and state income tax refunds
• filing a contempt motion with the court for failure to pay child support, which could result in incarceration
• denying you a passport
• suspending or denying a driver's license, in addition to all professional and recreational licenses (such as hunting and fishing licenses, contractors' licenses, and real estate brokers' licenses)
• placing a lien on your real estate and personal property, and attaching your assets so that you can't sell the property without paying the child support, and
• prosecuting you for criminal non-support.