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Developed and maintained by the Division of Legislative Automated Systems.
1996 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 20-49.8, 20-108.1, 20-108.2 and 63.1-250.1 of the Code of Virginia are amended and reenacted as follows:
§ 20-49.8. Judgment or order; costs; birth record.
A. A judgment or order establishing parentage may include any provision
directed against the appropriate party to the proceeding, concerning the duty
of support, including an equitable apportionment of the expenses incurred on
behalf of the child from the date notice of the proceeding under this
chapter was given to filed with the court against the alleged
parent, which may be in favor of the natural parent or any other person or
agency who incurred such expenses provided the complainant exercised due
diligence in the service of the respondent. The judgment or order may also
include provisions for the custody and guardianship of the child, visitation
privileges with the child, or any other matter in the best interest of the
child. In circumstances where the parent is outside the jurisdiction of the
court, the court may enter a further order requiring the furnishing of bond or
other security for the payment required by the judgment or order. The judgment
or order may direct either party to pay the reasonable and necessary unpaid
expenses of the mother's pregnancy and delivery or equitably apportion the
unpaid expenses between the parties. However, when the Commonwealth, through
the Medicaid program, has paid such expenses, the court may order reimbursement
to the Commonwealth for such expenses.
B. A determination of paternity made by any other state shall be given full faith and credit, whether established through voluntary acknowledgment or through administrative or judicial process; provided, however, that, except as may otherwise be required by law, such full faith and credit shall be given only for the purposes of establishing a duty to make payments of support and other payments contemplated by subsection A.
C. For each court determination of parentage made under the provisions of this chapter, a certified copy of the order or judgment shall be transmitted to the State Registrar of Vital Records by the clerk of the court within thirty days after the order becomes final. Such order shall set forth the full name and date and place of birth of the person whose parentage has been determined, the full names of both parents, including the maiden name, if any, of the mother and the name and address of an informant who can furnish the information necessary to complete a new birth record. In addition, when the State Registrar receives a document signed by a man indicating his consent to submit to scientifically reliable genetic tests, including blood tests, to determine paternity and the genetic test results affirming at least a ninety-eight percent probability of paternity, a new birth record shall be completed as provided in § 32.1-261. When the State Registrar receives a copy of a judgment or order for a person born outside of this Commonwealth, such order shall be forwarded to the appropriate registration authority in the state of birth or the appropriate federal agency.
§ 20-108.1. Determination of child or spousal support.
A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.
B. In any proceeding on the issue of determining child support under this title or Title 16.1 or 63.1, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded. Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with the court provided the complainant exercised due diligence in the service of the respondent.
In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:
1. Actual monetary support for other children, other family members or former family members;
2. Arrangements regarding custody of the children;
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation;
4. Debts of either party arising during the marriage for the benefit of the child;
5. Debts incurred for production of income;
6. Direct payments ordered by the court for health care coverage, maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child and costs related to the provision of health care coverage pursuant to subdivision 7 of § 20-60.3;
7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
8. Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child-care expenses;
9. Independent financial resources, if any, of the child or children;
10. Standard of living for the family established during the marriage;
11. Earning capacity, obligations and needs, and financial resources of each parent;
12. Education and training of the parties and the ability and opportunity of the parties to secure such education and training;
13. Contributions, monetary and nonmonetary, of each party to the well-being of the family;
14. Provisions made with regard to the marital property under § 20-107.3;
15. Tax consequences to the parties regarding claims for dependent children and child care expenses;
16. A written agreement between the parties which includes the amount of child support;
17. A pendente lite decree, which includes the amount of child support, agreed to by both parties or by counsel for the parties; and
18. Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children.
C. In any proceeding under this title or Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to order a party to provide health care coverage, as defined in § 63.1-250, for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.
D. In any proceeding under this title, Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.
§ 20-108.2. Guideline for determination of child support.
A. There shall be a rebuttable presumption in any judicial or administrative proceeding for child support under this title or Title 16.1 or 63.1, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support to be awarded. In order to rebut the presumption, the court shall make written findings in the order as set out in § 20-108.1, which findings may be incorporated by reference, that the application of the guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to the factors set out in §§ 20-107.2 and 20-108.1. The Department of Social Services shall set child support at the amount resulting from computations using the guidelines set out in this section pursuant to the authority granted to it in Chapter 13 (§ 63.1-249 et seq.) of Title 63.1 and subject to the provisions of § 63.1-264.2.
B. For purposes of application of the guideline, a basic child support obligation shall be computed using the schedule set out below. For combined monthly gross income amounts falling between amounts shown in the schedule, basic child support obligation amounts shall be extrapolated. "Number of children" shall mean the number of children for whom the parents share joint legal responsibility and for whom support is being sought.
SCHEDULE OF
MONTHLY BASIC CHILD SUPPORT OBLIGATIONS
COMBINED
MONTHLY
GROSS ONE TWO THREE FOUR FIVE SIX
INCOME CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN
0-599 65 65 65 65 65 65
600 110 111 113 114 115 116
650 138 140 142 143 145 146
700 153 169 170 172 174 176
750 160 197 199 202 204 206
800 168 226 228 231 233 236
850 175 254 257 260 263 266
900 182 281 286 289 292 295
950 189 292 315 318 322 325
1000 196 304 344 348 351 355
1050 203 315 373 377 381 385
1100 210 326 402 406 410 415
1150 217 337 422 435 440 445
1200 225 348 436 465 470 475
1250 232 360 451 497 502 507
1300 241 373 467 526 536 542
1350 249 386 483 545 570 576
1400 257 398 499 563 605 611
1450 265 411 515 581 633 645
1500 274 426 533 602 656 680
1550 282 436 547 617 672 714
1600 289 447 560 632 689 737
1650 295 458 573 647 705 754
1700 302 468 587 662 721 772
1750 309 479 600 676 738 789
1800 315 488 612 690 752 805
1850 321 497 623 702 766 819
1900 326 506 634 714 779 834
1950 332 514 645 727 793 848
2000 338 523 655 739 806 862
2050 343 532 666 751 819 877
2100 349 540 677 763 833 891
2150 355 549 688 776 846 905
2200 360 558 699 788 860 920
2250 366 567 710 800 873 934
2300 371 575 721 812 886 948
2350 377 584 732 825 900 963
2400 383 593 743 837 913 977
2450 388 601 754 849 927 991
2500 394 610 765 862 940 1006
2550 399 619 776 874 954 1020
2600 405 627 787 886 967 1034
2650 410 635 797 897 979 1048
2700 415 643 806 908 991 1060
2750 420 651 816 919 1003 1073
2800 425 658 826 930 1015 1085
2850 430 667 836 941 1027 1098
2900 435 675 846 953 1039 1112
2950 440 683 856 964 1052 1125
3000 445 691 866 975 1064 1138
3050 450 699 876 987 1076 1152
3100 456 707 886 998 1089 1165
3150 461 715 896 1010 1101 1178
3200 466 723 906 1021 1114 1191
3250 471 732 917 1032 1126 1205
3300 476 740 927 1044 1139 1218
3350 481 748 937 1055 1151 1231
3400 486 756 947 1067 1164 1245
3450 492 764 957 1078 1176 1258
3500 497 772 967 1089 1189 1271
3550 502 780 977 1101 1201 1285
3600 507 788 987 1112 1213 1298
3650 512 797 997 1124 1226 1311
3700 518 806 1009 1137 1240 1326
3750 524 815 1020 1150 1254 1342
3800 530 824 1032 1163 1268 1357
3850 536 834 1043 1176 1283 1372
3900 542 843 1055 1189 1297 1387
3950 547 852 1066 1202 1311 1402
4000 553 861 1078 1214 1325 1417
4050 559 871 1089 1227 1339 1432
4100 565 880 1101 1240 1353 1448
4150 571 889 1112 1253 1367 1463
4200 577 898 1124 1266 1382 1478
4250 583 907 1135 1279 1396 1493
4300 589 917 1147 1292 1410 1508
4350 594 926 1158 1305 1424 1523
4400 600 935 1170 1318 1438 1538
4450 606 944 1181 1331 1452 1553
4500 612 954 1193 1344 1467 1569
4550 618 963 1204 1357 1481 1584
4600 624 972 1216 1370 1495 1599
4650 630 981 1227 1383 1509 1614
4700 635 989 1237 1395 1522 1627
4750 641 997 1247 1406 1534 1641
4800 646 1005 1257 1417 1546 1654
4850 651 1013 1267 1428 1558 1667
4900 656 1021 1277 1439 1570 1679
4950 661 1028 1286 1450 1582 1692
5000 666 1036 1295 1460 1593 1704
5050 671 1043 1305 1471 1605 1716
5100 675 1051 1314 1481 1616 1728
5150 680 1058 1323 1492 1628 1741
5200 685 1066 1333 1502 1640 1753
5250 690 1073 1342 1513 1651 1765
5300 695 1081 1351 1524 1663 1778
5350 700 1088 1361 1534 1674 1790
5400 705 1096 1370 1545 1686 1802
5450 710 1103 1379 1555 1697 1815
5500 714 1111 1389 1566 1709 1827
5550 719 1118 1398 1576 1720 1839
5600 724 1126 1407 1587 1732 1851
5650 729 1133 1417 1598 1743 1864
5700 734 1141 1426 1608 1755 1876
5750 739 1148 1435 1619 1766 1888
5800 744 1156 1445 1629 1778 1901
5850 749 1163 1454 1640 1790 1913
5900 753 1171 1463 1650 1801 1925
5950 758 1178 1473 1661 1813 1937
6000 763 1186 1482 1672 1824 1950
6050 768 1193 1491 1682 1836 1962
6100 773 1201 1501 1693 1847 1974
6150 778 1208 1510 1703 1859 1987
6200 783 1216 1519 1714 1870 1999
6250 788 1223 1529 1724 1882 2011
6300 792 1231 1538 1735 1893 2023
6350 797 1238 1547 1745 1905 2036
6400 802 1246 1557 1756 1916 2048
6450 807 1253 1566 1767 1928 2060
6500 812 1261 1575 1777 1940 2073
6550 816 1267 1583 1786 1949 2083
6600 820 1272 1590 1794 1957 2092
6650 823 1277 1597 1801 1965 2100
6700 827 1283 1604 1809 1974 2109
6750 830 1288 1610 1817 1982 2118
6800 834 1293 1617 1824 1990 2127
6850 837 1299 1624 1832 1999 2136
6900 841 1304 1631 1839 2007 2145
6950 845 1309 1637 1847 2016 2154
7000 848 1315 1644 1855 2024 2163
7050 852 1320 1651 1862 2032 2172
7100 855 1325 1658 1870 2041 2181
7150 859 1331 1665 1878 2049 2190
7200 862 1336 1671 1885 2057 2199
7250 866 1341 1678 1893 2066 2207
7300 870 1347 1685 1900 2074 2216
7350 873 1352 1692 1908 2082 2225
7400 877 1358 1698 1916 2091 2234
7450 880 1363 1705 1923 2099 2243
7500 884 1368 1712 1931 2108 2252
7550 887 1374 1719 1938 2116 2261
7600 891 1379 1725 1946 2124 2270
7650 895 1384 1732 1954 2133 2279
7700 898 1390 1739 1961 2141 2288
7750 902 1395 1746 1969 2149 2297
7800 905 1400 1753 1977 2158 2305
7850 908 1405 1758 1983 2164 2313
7900 910 1409 1764 1989 2171 2320
7950 913 1414 1770 1995 2178 2328
8000 916 1418 1776 2001 2185 2335
8050 918 1423 1781 2007 2192 2343
8100 921 1428 1787 2014 2198 2350
8150 924 1432 1793 2020 2205 2357
8200 927 1437 1799 2026 2212 2365
8250 929 1441 1804 2032 2219 2372
8300 932 1446 1810 2038 2226 2380
8350 935 1450 1816 2045 2232 2387
8400 937 1455 1822 2051 2239 2395
8450 940 1459 1827 2057 2246 2402
8500 943 1464 1833 2063 2253 2410
8550 945 1468 1839 2069 2260 2417
8600 948 1473 1845 2076 2266 2425
8650 951 1478 1850 2082 2273 2432
8700 954 1482 1856 2088 2280 2440
8750 956 1487 1862 2094 2287 2447
8800 959 1491 1868 2100 2294 2455
8850 962 1496 1873 2107 2300 2462
8900 964 1500 1879 2113 2307 2470
8950 967 1505 1885 2119 2314 2477
9000 970 1509 1891 2125 2321 2484
9050 973 1514 1896 2131 2328 2492
9100 975 1517 1901 2137 2334 2498
9150 977 1521 1905 2141 2339 2503
9200 979 1524 1909 2146 2344 2509
9250 982 1527 1914 2151 2349 2514
9300 984 1531 1918 2156 2354 2520
9350 986 1534 1922 2160 2359 2525
9400 988 1537 1926 2165 2365 2531
9450 990 1541 1930 2170 2370 2536
9500 993 1544 1935 2175 2375 2541
9550 995 1547 1939 2179 2380 2547
9600 997 1551 1943 2184 2385 2552
9650 999 1554 1947 2189 2390 2558
9700 1001 1557 1951 2194 2396 2563
9750 1003 1561 1956 2198 2401 2569
9800 1006 1564 1960 2203 2406 2574
9850 1008 1567 1964 2208 2411 2580
9900 1010 1571 1968 2213 2416 2585
9950 1012 1574 1972 2218 2421 2590
10000 1014 1577 1977 2222 2427 2596
For gross monthly income between $10,000 and $20,000, add the amount of child support for $10,000 to the following percentages of gross income above $10,000:
ONE TWO THREE FOUR FIVE SIX
CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 3.1% 5.1% 6.8% 7.8% 8.8% 9.5%
For gross monthly income between $20,000 and $50,000, add the amount of child support for $20,000 to the following percentages of gross income above $20,000:
ONE TWO THREE FOUR FIVE SIX
CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 2% 3.5% 5% 6% 6.9% 7.8%
For gross monthly income over $50,000, add the amount of child support for $50,000 to the following percentages of gross income above $50,000:
ONE TWO THREE FOUR FIVE SIX
CHILD CHILDREN CHILDREN CHILDREN CHILDREN CHILDREN 1% 2% 3% 4% 5% 6%
C. For purposes of this section, "gross income" shall mean all income from all sources, and shall include, but not be limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, spousal support, rental income, gifts, prizes or awards.
Gross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business. "Gross income" shall not include benefits from public assistance programs as defined in § 63.1-87, federal supplemental security income benefits, or child support received. For purposes of this subsection, spousal support included in gross income shall be limited to spousal support paid pursuant to a pre-existing order or written agreement and spousal support shall be deducted from the gross income of the payor when paid pursuant to a pre-existing order or written agreement between the parties to the present proceeding.
In cases in which retroactive liability for support is being determined, the court or administrative agency may use the gross monthly income of the parties averaged over the period of retroactivity.
D. Any extraordinary medical and dental expenses for treatment of the child or children shall be added to the basic child support obligation. For purposes of this section, extraordinary medical and dental expenses are uninsured expenses in excess of $100 for a single illness or condition and shall include but not be limited to eyeglasses, prescription medication, prostheses, and mental health services whether provided by a social worker, psychologist, psychiatrist, or counselor.
E. Any costs for health care coverage as defined in § 63.1-250, when actually being paid by a parent, to the extent such costs are directly allocable to the child or children, and which are the extra costs of covering the child or children beyond whatever coverage the parent providing the coverage would otherwise have, shall be added to the basic child support obligation.
F. Any child-care costs incurred on behalf of the child or children due to employment of the custodial parent shall be added to the basic child support obligation. Child-care costs shall not exceed the amount required to provide quality care from a licensed source. Where appropriate, the court shall consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.
G. 1. Except in cases involving split custody or shared custody, a total monthly child support obligation shall be established by adding (i) the monthly basic child support obligation, as determined from the schedule contained in subsection B of this section, (ii) all extraordinary medical expenses, (iii) costs for health care coverage to the extent allowable by subsection E, and (iv) work-related child-care costs and taking into consideration all the factors set forth in subsection B of § 20-108.1. The total monthly child support obligation shall be divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income. The monthly obligation of each parent shall be computed by multiplying each parent's percentage of the parents' monthly combined gross income by the total monthly child support obligation.
However, the monthly obligation of the noncustodial parent shall be reduced by the cost for health care coverage to the extent allowable by subsection E when paid directly by the noncustodial parent.
2. In cases involving split custody, the amount of child support to be paid shall be the difference between the amounts owed by each parent as a noncustodial parent, computed in accordance with subdivision 1 of this subsection, with the noncustodial parent owing the larger amount paying the difference to the other parent.
For the purpose of this section and § 20-108.1, split custody shall be limited to those situations where each parent has physical custody of a child or children born of the parents, born of either parent and adopted by the other parent or adopted by both parents. For the purposes of calculating a child support obligation where split custody exists, a separate family unit exists for each parent, and child support for that family unit shall be calculated upon the number of children in that family unit who are born of the parents, born of either parent and adopted by the other parent or adopted by both parents. Where split custody exists, a parent is a custodial parent to the children in that parent's family unit and is a noncustodial parent to the children in the other parent's family unit.
3. In cases involving shared custody, the amount of child support to be paid is the difference between the amounts owed by each parent to the other parent, with the parent owing the larger amount paying the difference to the other parent.
To compute the monthly amount to be paid by one parent to the other parent, the following calculations shall be made:
(a) The "basic child support obligation" of each parent shall be the "total shared support" multiplied by the other parent's "custody share." The "total shared support" of both parties equals statutory guideline amount determined pursuant to subsection B for the combined income of the parties and the number of shared children multiplied by 1.25. A parent's "custody share" equals the number of days that parent has physical custody of a shared child per year divided by the number of days in the year.
(b) To each parent's "basic child support obligation" shall be added the other parent's costs of health care coverage, to the extent allowable by subsection E, and the other parent's work-related child care costs to the extent allowable by subsection F.
(c) The obligation of each parent to the other shall be then computed by multiplying each parent's percentage of the parents' monthly combined gross income by the support obligation obtained in subdivision G 3 (b).
The shared custody rules set forth herein apply when each parent has physical custody of a child or children born of the parties, born of either parent and adopted by the other parent, or adopted by both parents, for more than 110 days of the year. Any calculation under this subdivision shall not create or reduce a support obligation to an amount which seriously impairs the custodial parent's ability to maintain minimal adequate housing and provide other basic necessities for the child.
H. The Secretary of Health and Human Resources shall ensure that the guideline set out in this section is reviewed by July 1, 1990, and every four years thereafter, by a panel which includes representatives of the courts, the executive branch, the General Assembly, the bar, custodial and noncustodial parents and child advocates. The panel shall determine the adequacy of the guideline for the determination of appropriate awards for the support of children by considering current research and data on the cost of and expenditures necessary for rearing children, and any other resources it deems relevant to such review. The panel shall report its findings to the General Assembly before it next convenes following such review.
§ 63.1-250.1. Authority to issue certain orders.
A. In the absence of a court order, the Department of Social Services shall have the authority to issue orders directing the payment of child, and child and spousal support and, if available at reasonable cost as defined in § 63.1-250, to require a provision for health care coverage for dependent children of the obligor, which shall include the requirements specified for employers pursuant to subdivision A 5 of § 20-79.3. Liability for child support shall be determined retroactively for the period measured from the date the order directing payment is delivered to the sheriff or process server for service upon the obligor.
In ordering the payment of child support, the Department shall set such support at the amount resulting from computation pursuant to the guideline set out in § 20-108.2, subject to the provisions of § 63.1-264.2.
B. The Department of Social Services shall have the authority, upon notice from the Department of Medical Assistance Services, to use any existing enforcement mechanisms provided by this chapter to collect the wages, salary, or other employment income or to withhold amounts from state tax refunds of any obligor who has not used payments received from a third party to reimburse, as appropriate, either the other parent of such child or the provider of such services, to the extent necessary to reimburse the Department of Medical Assistance Services.
C. The Department may order the obligor and payee to notify each other or the Department upon request of current gross income as defined in § 20-108.2 and any other pertinent information which may affect child support amounts. For good cause shown, the Department may order that such information be provided to the Department and made available to the parties for inspection in lieu of the parties' providing such information directly to each other.
D. The Department shall develop procedures governing the method and timing of periodic review and adjustment of child support orders established or enforced or both pursuant to Title IV-D of the Social Security Act. The Department shall, at the request of either parent subject to the order or of a state child support enforcement agency, initiate a review of such order, and initiate appropriate action to adjust such order in accordance with the provisions of § 20-108.2 and subject to the provisions of § 63.1-264.2.
E. The Commissioner, the Director of the Division of Child Support Enforcement and district managers of Division of Child Support Enforcement offices shall have the right to subpoena financial records of the responsible person and obligee from any person, firm, corporation, association, or political subdivision or department of the Commonwealth and to summons the responsible parent and obligee to appear in the Division's offices to provide essential information for whatever establishment or enforcement actions are necessary for the collection of child support. The Commissioner, Director and district managers may also subpoena copies of state and federal income tax returns. The district managers shall be trained in the correct use of the subpoena process prior to exercising subpoena authority.
F. In the absence of a court order, the Department may establish an administrative support order on an out-of-state obligor if the obligor and the obligee maintained a matrimonial domicile within the Commonwealth. The Department may also take action to enforce an administrative or court order on an out-of-state obligor. Service of such actions shall be in accordance with the provisions of §§ 8.01-296, 8.01-327, or § 8.01-329, or by certified mail, return receipt requested.