Remarriage and Child Support in Virginia

By , Retired Judge

If you're a divorced parent living in Virginia, and you're thinking about remarrying, there's a question that you need to consider. Will remarriage affect an existing child support order? Hopefully this article will give you some insight on the subject.

Virginia Child Support Basics

In Virginia, judges use specific guidelines to determine child support. Support award are based primarily on the parents' joint income and the number of children involved. Once the court calculates a total support figure using the guidelines, it divides this amount proportionately between the parents, based on their individual incomes.

The court considers various income sources, including:

  • salaries, wages, and commissions
  • dividends, interest, and capital gains
  • pensions and annuities
  • spousal support
  • gifts, prizes, or awards, and
  • Social Security benefits, unemployment insurance, disability insurance, and workers' compensation.

In setting a support figure, the court also addresses a child's health care needs, as well as employment-related childcare expenses.

The law provides certain income deductions in calculating support, including an amount for natural or adopted children in the parent's household (other than the children who are the subject of the current support order).

For more information on child support in Virginia, you can visit the Virginia Department of Social Services website.

There's a Presumption That Guidelines Support Awards Are Correct

Virginia law indicates that there's a rebuttable presumption that a guidelines child support award is correct. This presumption is "rebuttable" because there may be situations where using the guidelines could be unjust or inappropriate. If you request a deviation from the guidelines, the court will consider certain items in determining whether to take this step. For example, a judge will look at each parent's ability to provide support, the child's best interests, and certain other factors, some of which are:

  • actual monetary support for other family members or former family members
  • arrangements regarding child custody, including visitation travel costs
  • income the court decides to attribute or "impute" to a parent, if the court believes that the parent is voluntarily unemployed or underemployed without a valid reason
  • a child's special needs resulting from any physical, emotional, or medical condition
  • a child's independent financial resources, and
  • each parent's earning capacity, obligations, financial resources, and special needs.

Modifying a Child Support Order

Can parents change existing child support orders? Certainly. But, in order to do so, the parent seeking the modification will have to ask a court to adjust the existing child support order and prove that there's been amaterial change in circumstances that justifies changing the support amount. You also have to fully disclose the facts concerning your support payment ability. However, the court will review all the relevant evidence on both sides. In light of this, there's no guarantee that the court is going to modify the support order.

Does the term "material change in circumstances" include remarriage?

Some Aspects of Remarriage May Lead to a Material Change

In and of itself, remarriage isn't necessarily a change in circumstances that warrants child support modification. Why is that? Because your new spouse doesn't have an obligation to support the children from your prior relationship. But remarriage has potential aspects that may impact child support.

A New Child Can Make a Difference

Under what is known as common law, a new child has no effect on a support order. The prevailing thought was that a parent's first children had priority. But that reasoning is becoming passé. The current thinking in many states, Virginia included, is that all a parent's children should have their needs addressed.

In support of this theory, note that the guidelines provide an income deduction for natural or adopted children (not involved in the current support order). The guidelines deviation standards contain additional evidence of a new child's significance. "Actual monetary support for other family members" is one of the factors a court can consider. A new child certainly appears to fall into this category. However, your financial responsibility for a new child doesn't automatically establish a material change in circumstances. It's merely something the court can look at in determining whether to modify a support order.

A New Spouse May Be Relevant to Child Support

As seen above, a new spouse isn't required to support your children from a past relationship. But that aside, a new spouse's presence may very well play a role if you're seeking to modify an existing child support order. A Virginia court case provides the reason for this. In its decision, the court held that remarriage could change a parent's ability to provide child support. How so? The decision specifically references the impact on a parent's expenses. For example, let's say that your new spouse is contributing to household costs, such as mortgage or rent, utilities and groceries. The more your spouse contributes, the less individual income you have to spend on those costs. In effect, this leaves you with more income to apply to supporting your children. The court can consider this scenario in determining whether a child support modification is justified.

The issue of remarriage and child support in Virginia is complex, and this article is only meant to give you an overview of the topic. If this subject matter applies to you, be sure to consult a qualified family law attorney with any questions you may have.

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