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A common complex support case is one in which custody of the children
of the marriage is a combination of shared custody of some children
with sole custody of other children. There is no provision in the Virginia
guideline which governs these situations, and determining the fairest
solution is difficult. Some of the difficulty
arises because the support guideline table in §20-108.2 does not
produce a child support for two children that is twice the child support
for one child, and because of the 1.4 multiplier in the Shared Support
calculation
In sole custody alone, the problem does not arise, because only one
child gets the higher support for being the "first" child. In
split custody, two children are entered at the higher support rate. This is
as it should be, because both husband and wife have to maintain
separate households and incur the overhead of having children in the
house. That is the guideline split custody calculations treat two children
with different custodians as two first children.
However, when you introduce shared custody into the mix, you have a
potential problem, because §20-108.2(iii) specifies that the "Shared
support need" be determined by multiplying the guideline table
amount by 1.4.
For example, suppose you have one sole custody child and a shared custody
child, shared equally between Mom and Dad (182.5 days each). Father
makes $12,000 per month and mother makes $6000 per month. Here are
the resulting supports for both mother and father as custodian of the
sole custody child. The first scenario is for sole custody calculated
first and the second, for shared custody calculated first:
| Sole
first: (support to Pa shown as minus #s) |
| |
Sole Custody |
Shared Custody |
Net |
| Ma custodian |
691 |
168 |
859 |
| Pa custodian |
-421 |
168 |
-253 |
| (where the shared custody is
figured for the marginal cost of adding a second child;
i.e. shared support for 2 children - shared support for
1 child) |
| Shared
first: (support to Pa shown as minus #s)b> |
| |
Sole Custody |
Shared Custody |
Net |
| Ma custodian |
482 |
295 |
777 |
| Pa custodian |
-241 |
295 |
54 |
| (where the sole custody is figured
for the marginal cost of adding a second child; i.e. sole
support for 2 children - sole support for 1 child) |
You can see that the two ways of calculating support produce wildly
different values for both father and mother. If Pa is the sole custodian,
he gets a monthly support of $253 if sole is calculated first and
pays $54 per month if Shared is calculated first! This is a situation
crying for a well thought-out solution.
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| SHARED CUSTODY COMPLEXITY |
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There are several areas of concern in the shared custody calculation, (Virginia
Code
§20-108.2.G.3):
The calculation of the "day" for the purposes
of applying the shared custody support guideline may be
complex
and can be unfair to the minority custodian. The
forced comparison with sole custody results
in 3 worksheets submitted for shared custody. (Fortunately
VADER does these automatically.) The
use of the federal poverty guidelines in determining
the applicability of the shared support guideline
produces an additional complexity in the shared
support calculation. The
problem is that the poverty calculation is based
on the number of persons in the household of
the possible poverty parent, and these persons
may include other people than the supported children.
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| AMBIGUITIES IN CALCULATION OF ARREARS |
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When a person is in arrears in support and then makes a support
payment in excess of the current mandated support, Virginia law does
not specify whether to apply the excess amount first to the arrearage
principal or first to the accumulated interest. In long-term arrearages,
the difference in the total amount owed can be significant, depending
on which method is chosen. Federal law provides that each state must
choose an appropriate method. Virginia has not done so.
DCSE, Virginia’s child support enforcement agency, has
chosen to apply the excess first to the outstanding principal
and then apply the remainder to the accumulated interest. VADER has been modified to calculate Arrears the DCSE
way. However, you could mount a fair argument for applying the
excess first to the outstanding interest (as a bank would do)
before reducing the principal. This issue is controversial and
still needs to be resolved in Virginia law.
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| INCONSISTENT HANDLING OF DIFFERENT TYPES OF EXPENSES |
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Work-related child care costs
and payments for medical insurance for the child/children are expenses
which the statute requires to be added to the basic child support gotten
from the guideline table to be allocated by income share. If one party
pays the medical insurance, the portion of that premium allocated to
the supported children is then subtracted from that party's child support
obligation. However, if that party, instead, pays the full cost of
the day care center, he
or she does not automatically get to deduct this expense from his/her
support obligation. Why?
The reason is that in sole custody
support, there is a presumption that the custodian
is responsible for paying day care. For the payment
of medical insurance for the children, however,
no such presumption is possible, as the non-custodial parent
may have the payment automatically deducted from
his/her paycheck.
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