2006 Code of Virginia § 20-108.2 - Guideline for determination of child support; quadrennial review by Child Support Guidelines Revie...

20-108.2. Guideline for determination of child support; quadrennial reviewby Child Support Guidelines Review Panel; executive summary.

A. There shall be a rebuttable presumption in any judicial or administrativeproceeding for child support under this title or Title 16.1 or 63.2,including cases involving split custody or shared custody, that the amount ofthe award which would result from the application of the guidelines set forthin this section is the correct amount of child support to be awarded. Inorder to rebut the presumption, the court shall make written findings in theorder as set out in 20-108.1, which findings may be incorporated byreference, that the application of the guidelines would be unjust orinappropriate in a particular case as determined by relevant evidencepertaining to the factors set out in 20-108.1. The Department of SocialServices shall set child support at the amount resulting from computationsusing the guidelines set out in this section pursuant to the authoritygranted to it in Chapter 19 ( 63.2-1900 et seq.) of Title 63.2 and subjectto the provisions of 63.2-1918.

B. For purposes of application of the guideline, a basic child supportobligation shall be computed using the schedule set out below. For combinedmonthly gross income amounts falling between amounts shown in the schedule,basic child support obligation amounts shall be extrapolated. However, unlessone of the following exemptions applies where the sole custody child supportobligation as computed pursuant to subdivision G 1 is less than $65 permonth, there shall be a presumptive minimum child support obligation of $65per month payable by the payor parent. Exemptions from this presumptiveminimum monthly child support obligation shall include: parents unable to paychild support because they lack sufficient assets from which to pay childsupport and who, in addition, are institutionalized in a psychiatricfacility; are imprisoned with no chance of parole; are medically verified tobe totally and permanently disabled with no evidence of potential for payingchild support, including recipients of Supplemental Security Income (SSI); orare otherwise involuntarily unable to produce income. "Number of children"means the number of children for whom the parents share joint legalresponsibility and for whom support is being sought.

SCHEDULE OF MONTHLY BASIC CHILD SUPPORT OBLIGATIONS

COMBINED
MONTHLY
GROSSONETWOTHREEFOURFIVESIX
INCOMECHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
0-599656565656565
600110111113114115116
650138140142143145146
700153169170172174176
750160197199202204206
800168226228231233236
850175254257260263266
900182281286289292295
950189292315318322325
1000196304344348351355
1050203315373377381385
1100210326402406410415
1150217337422435440445
1200225348436465470475
1250232360451497502507
1300241373467526536542
1350249386483545570576
1400257398499563605611
1450265411515581633645
1500274426533602656680
1550282436547617672714
1600289447560632689737
1650295458573647705754
1700302468587662721772
1750309479600676738789
1800315488612690752805
1850321497623702766819
1900326506634714779834
1950332514645727793848
2000338523655739806862
2050343532666751819877
2100349540677763833891
2150355549688776846905
2200360558699788860920
2250366567710800873934
2300371575721812886948
2350377584732825900963
2400383593743837913977
2450388601754849927991
25003946107658629401006
25503996197768749541020
26004056277878869671034
26504106357978979791048
27004156438069089911060
275042065181691910031073
280042565882693010151085
285043066783694110271098
290043567584695310391112
295044068385696410521125
300044569186697510641138
305045069987698710761152
310045670788699810891165
3150461715896101011011178
3200466723906102111141191
3250471732917103211261205
3300476740927104411391218
3350481748937105511511231
3400486756947106711641245
3450492764957107811761258
3500497772967108911891271
3550502780977110112011285
3600507788987111212131298
3650512797997112412261311
37005188061009113712401326
37505248151020115012541342
38005308241032116312681357
38505368341043117612831372
39005428431055118912971387
39505478521066120213111402
40005538611078121413251417
40505598711089122713391432
41005658801101124013531448
41505718891112125313671463
42005778981124126613821478
42505839071135127913961493
43005899171147129214101508
43505949261158130514241523
44006009351170131814381538
44506069441181133114521553
45006129541193134414671569
45506189631204135714811584
46006249721216137014951599
46506309811227138315091614
47006359891237139515221627
47506419971247140615341641
480064610051257141715461654
485065110131267142815581667
490065610211277143915701679
495066110281286145015821692
500066610361295146015931704
505067110431305147116051716
510067510511314148116161728
515068010581323149216281741
520068510661333150216401753
525069010731342151316511765
530069510811351152416631778
535070010881361153416741790
540070510961370154516861802
545071011031379155516971815
550071411111389156617091827
555071911181398157617201839
560072411261407158717321851
565072911331417159817431864
570073411411426160817551876
575073911481435161917661888
580074411561445162917781901
585074911631454164017901913
590075311711463165018011925
595075811781473166118131937
600076311861482167218241950
605076811931491168218361962
610077312011501169318471974
615077812081510170318591987
620078312161519171418701999
625078812231529172418822011
630079212311538173518932023
635079712381547174519052036
640080212461557175619162048
645080712531566176719282060
650081212611575177719402073
655081612671583178619492083
660082012721590179419572092
665082312771597180119652100
670082712831604180919742109
675083012881610181719822118
680083412931617182419902127
685083712991624183219992136
690084113041631183920072145
695084513091637184720162154
700084813151644185520242163
705085213201651186220322172
710085513251658187020412181
715085913311665187820492190
720086213361671188520572199
725086613411678189320662207
730087013471685190020742216
735087313521692190820822225
740087713581698191620912234
745088013631705192320992243
750088413681712193121082252
755088713741719193821162261
760089113791725194621242270
765089513841732195421332279
770089813901739196121412288
775090213951746196921492297
780090514001753197721582305
785090814051758198321642313
790091014091764198921712320
795091314141770199521782328
800091614181776200121852335
805091814231781200721922343
810092114281787201421982350
815092414321793202022052357
820092714371799202622122365
825092914411804203222192372
830093214461810203822262380
835093514501816204522322387
840093714551822205122392395
845094014591827205722462402
850094314641833206322532410
855094514681839206922602417
860094814731845207622662425
865095114781850208222732432
870095414821856208822802440
875095614871862209422872447
880095914911868210022942455
885096214961873210723002462
890096415001879211323072470
895096715051885211923142477
900097015091891212523212484
905097315141896213123282492
910097515171901213723342498
915097715211905214123392503
920097915241909214623442509
925098215271914215123492514
930098415311918215623542520
935098615341922216023592525
940098815371926216523652531
945099015411930217023702536
950099315441935217523752541
955099515471939217923802547
960099715511943218423852552
965099915541947218923902558
9700100115571951219423962563
9750100315611956219824012569
9800100615641960220324062574
9850100815671964220824112580
9900101015711968221324162585
9950101215741972221824212590
10000101415771977222224272596

For gross monthly income between $10,000 and $20,000, add the amount of childsupport for $10,000 to the following percentages of gross income above$10,000:

ONETWOTHREEFOURFIVESIX
CHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
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 childsupport for $20,000 to the following percentages of gross income above$20,000:

ONETWOTHREEFOURFIVESIX
CHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
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:

ONETWOTHREEFOURFIVESIX
CHILDCHILDRENCHILDRENCHILDRENCHILDRENCHILDREN
1%2%3%4%5%6%

C. For purposes of this section, "gross income" means all income from allsources, 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 benefitsexcept as listed below, workers' compensation benefits, unemploymentinsurance benefits, disability insurance benefits, veterans' benefits,spousal support, rental income, gifts, prizes or awards.

If a parent's gross income includes disability insurance benefits, it shallalso include any amounts paid to or for the child who is the subject of theorder and derived by the child from the parent's entitlement to disabilityinsurance benefits. To the extent that such derivative benefits are includedin a parent's gross income, that parent shall be entitled to a credit againsthis or her ongoing basic child support obligation for any such amounts, and,if the amount of the credit exceeds the parent's basic child supportobligations, the credit may be used to reduce arrearages.

Gross income shall be subject to deduction of reasonable business expensesfor persons with income from self-employment, a partnership, or a closelyheld business. "Gross income" shall not include:

1. Benefits from public assistance and social services programs as defined in 63.2-100;

2. Federal supplemental security income benefits;

3. Child support received; or

4. Income received by the payor from secondary employment income notpreviously included in "gross income," where the payor obtained the incometo discharge a child support arrearage established by a court oradministrative order and the payor is paying the arrearage pursuant to theorder. "Secondary employment income" includes but is not limited to incomefrom an additional job, from self-employment, or from overtime employment.The cessation of such secondary income upon the payment of the arrearageshall not be the basis for a material change in circumstances upon which amodification of child support may be based.

For purposes of this subsection: (i) spousal support received shall beincluded in gross income and spousal support paid shall be deducted fromgross income when paid pursuant to an order or written agreement and (ii)one-half of any self-employment tax paid shall be deducted from gross income.

Where there is an existing court or administrative order or written agreementrelating to the child or children of a party to the proceeding, who are notthe child or children who are the subject of the present proceeding, thenthere is a presumption that there shall be deducted from the gross income ofthe party subject to such order or written agreement, the amount that theparty is actually paying for the support of a child or children pursuant tosuch order or agreement.

Where a party to the proceeding has a natural or adopted child or children inthe party's household or primary physical custody, and the child or childrenare not the subject of the present proceeding, there is a presumption thatthere shall be deducted from the gross income of that party the amount asshown on the Schedule of Monthly Basic Child Support Obligations contained insubsection B that represents that party's support obligation based solely onthat party's income as being the total income available for the natural oradopted child or children in the party's household or primary physicalcustody, who are not the subject of the present proceeding. Provided,however, that the existence of a party's financial responsibility for such achild or children shall not of itself constitute a material change incircumstances for modifying a previous order of child support in anymodification proceeding. Any adjustment to gross income under this subsectionshall not create or reduce a support obligation to an amount which seriouslyimpairs the custodial parent's ability to maintain minimal adequate housingand provide other basic necessities for the child, as determined by the court.

In cases in which retroactive liability for support is being determined, thecourt or administrative agency may use the gross monthly income of theparties averaged over the period of retroactivity.

D. Except for good cause shown or the agreement of the parties, in additionto any other child support obligations established pursuant to this section,any child support order shall provide that the parents pay in proportion totheir gross incomes, as used for calculating the monthly support obligation,any reasonable and necessary unreimbursed medical or dental expenses that arein excess of $250 for any calendar year for each child who is the subject ofthe obligation. The method of payment of those expenses shall be contained inthe support order. Each parent shall pay his respective share of expenses asthose expenses are incurred. Any amount paid under this subsection shall notbe adjusted by, nor added to, the child support calculated in accordance withsubsection G. For the purposes of this section, medical or dental expensesshall include but not be limited to eyeglasses, prescription medication,prosthetics, orthodontics, and mental health or developmental disabilitiesservices, including but not limited to services provided by a social worker,psychologist, psychiatrist, counselor, or therapist.

E. Any costs for healthcare coverage as defined in 63.2-1900 and dentalcare coverage, when actually being paid by a parent, to the extent such costsare directly allocable to the child or children, and which are the extracosts of covering the child or children beyond whatever coverage the parentproviding the coverage would otherwise have, shall be added to the basicchild support obligation.

F. Any child-care costs incurred on behalf of the child or children due toemployment of the custodial parent shall be added to the basic child supportobligation. Child-care costs shall not exceed the amount required to providequality care from a licensed source. When requested by the noncustodialparent, the court may require the custodial parent to present documentationto verify the costs incurred for child care under this subsection. Whereappropriate, the court shall consider the willingness and availability of thenoncustodial parent to provide child care personally in determining whetherchild-care costs are necessary or excessive. Upon the request of eitherparty, and upon a showing of the tax savings a party derives from child-carecost deductions or credits, the court shall factor actual tax consequencesinto its calculation of the child-care costs to be added to the basic childsupport obligation.

G. 1. Sole custody support. The sole custody total monthly child supportobligation shall be established by adding (i) the monthly basic child supportobligation, as determined from the schedule contained in subsection B, (ii)costs for health care coverage to the extent allowable by subsection E, and(iii) work-related child-care costs and taking into consideration all thefactors set forth in subsection B of 20-108.1. The total monthly childsupport obligation shall be divided between the parents in the sameproportion as their monthly gross incomes bear to their monthly combinedgross income. The monthly obligation of each parent shall be computed bymultiplying each parent's percentage of the parents' monthly combined grossincome by the total monthly child support obligation.

However, the monthly obligation of the noncustodial parent shall be reducedby the cost for health care coverage to the extent allowable by subsection Ewhen paid directly by the noncustodial parent. Unreimbursed medical anddental expenses shall be calculated and allocated in accordance withsubsection D.

2. Split custody support. In cases involving split custody, the amount ofchild support to be paid shall be the difference between the amounts owed byeach parent as a noncustodial parent, computed in accordance with subdivision1, with the noncustodial parent owing the larger amount paying the differenceto the other parent. Unreimbursed medical and dental expenses shall becalculated and allocated in accordance with subsection D.

For the purpose of this section and 20-108.1, split custody shall belimited to those situations where each parent has physical custody of a childor children born of the parents, born of either parent and adopted by theother parent or adopted by both parents. For the purposes of calculating achild support obligation where split custody exists, a separate family unitexists for each parent, and child support for that family unit shall becalculated upon the number of children in that family unit who are born ofthe parents, born of either parent and adopted by the other parent or adoptedby both parents. Where split custody exists, a parent is a custodial parentto the children in that parent's family unit and is a noncustodial parent tothe children in the other parent's family unit.

3. Shared custody support.

(a) Where a party has custody or visitation of a child or children for morethan 90 days of the year, as such days are defined in subdivision G 3 (c), ashared custody child support amount based on the ratio in which the parentsshare the custody and visitation of any child or children shall be calculatedin accordance with this subdivision. The presumptive support to be paid shallbe the shared custody support amount, unless a party affirmatively shows thatthe sole custody support amount calculated as provided in subdivision G 1 isless than the shared custody support amount. If so, the lesser amount shallbe the support to be paid. For the purposes of this subsection, the followingshall apply:

(i) Income share. "Income share" means a parent's percentage of thecombined monthly gross income of both parents. The income share of a parentis that parent's gross income divided by the combined gross incomes of theparties.

(ii) Custody share. "Custody share" means the number of days that a parenthas physical custody, whether by sole custody, joint legal or jointresidential custody, or visitation, of a shared child per year divided by thenumber of days in the year. The actual or anticipated "custody share" ofthe parent who has or will have fewer days of physical custody shall becalculated for a one-year period. The "custody share" of the other parentshall be presumed to be the number of days in the year less the number ofdays calculated as the first parent's "custody share." For purposes of thiscalculation, the year may begin on such date as is determined in thediscretion of the court, and the day may begin at such time as is determinedin the discretion of the court. For purposes of this calculation, a day shallbe as defined in subdivision G 3 (c).

(iii) Shared support need. "Shared support need" means the presumptiveguideline amount of needed support for the shared child or childrencalculated pursuant to subsection B of this section, for the combined grossincome of the parties and the number of shared children, multiplied by 1.4.

(iv) Sole custody support. "Sole custody support" means the support amountdetermined in accordance with subdivision G 1.

(b) Support to be paid. The shared support need of the shared child orchildren shall be calculated pursuant to subdivision G 3 (a) (iii). Thisamount shall then be multiplied by the other parent's custody share. To thatsum for each parent shall be added the other parent's cost of health carecoverage to the extent allowable by subsection E, plus the other parent'swork-related child-care costs to the extent allowable by subsection F. Thistotal for each parent shall be multiplied by that parent's income share. Thesupport amounts thereby calculated that each parent owes the other shall besubtracted one from the other and the difference shall be the shared custodysupport one parent owes to the other, with the payor parent being the onewhose shared support is the larger. Unreimbursed medical and dental expensesshall be calculated and allocated in accordance with subsection D.

(c) Definition of a day. For the purposes of this section, "day" means aperiod of 24 hours; however, where the parent who has the fewer number ofovernight periods during the year has an overnight period with a child, buthas physical custody of the shared child for less than 24 hours during suchovernight period, there is a presumption that each parent shall be allocatedone-half of a day of custody for that period.

(d) Minimum standards. Any calculation under this subdivision shall notcreate or reduce a support obligation to an amount which seriously impairsthe custodial parent's ability to maintain minimal adequate housing andprovide other basic necessities for the child. If the gross income of eitherparty is equal to or less than 150 percent of the federal poverty levelpromulgated by the U.S. Department of Health and Human Services from time totime, then the shared custody support calculated pursuant to this subsectionshall not be the presumptively correct support and the court may considerwhether the sole custody support or the shared custody support is more justand appropriate.

(e) Support modification. When there has been an award of child support basedon the shared custody formula and one parent consistently fails to exercisecustody or visitation in accordance with the parent's custody share uponwhich the award was based, there shall be a rebuttable presumption that thesupport award should be modified.

(f) In the event that the shared custody support calculation indicates thatthe net support is to be paid to the parent who would not be the parentreceiving support pursuant to the sole custody calculation, then the sharedsupport shall be deemed to be the lesser support.

H. The Secretary of Health and Human Resources shall ensure that theguideline set out in this section is reviewed by October 31, 2001, and everyfour years thereafter, by the Child Support Guidelines Review Panel,consisting of 15 members comprised of four legislative members and 11nonlegislative citizen members. Members shall be appointed as follows: threemembers of the House Committee for Courts of Justice, upon the recommendationof the chairman of such committee, to be appointed by the Speaker of theHouse of Delegates in accordance with the principles of proportionalrepresentation contained in the Rules of the House of Delegates; one memberof the Senate Committee for Courts of Justice, upon the recommendation of thechairman of such committee, to be appointed by the Senate Committee on Rules;and one representative of a juvenile and domestic relations district court,one representative of a circuit court, one representative of the Departmentof Social Services' Division of Child Support Enforcement, three members ofthe Virginia State Bar, two custodial parents, two noncustodial parents, andone child advocate, upon the recommendation of the Secretary of Health andHuman Resources, to be appointed by the Governor. The Panel shall determinethe adequacy of the guideline for the determination of appropriate awards forthe support of children by considering current research and data on the costof and expenditures necessary for rearing children, and any other resourcesit deems relevant to such review. The Panel shall report its findings to theGeneral Assembly as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reportsbefore the General Assembly next convenes following such review.

Legislative members shall serve terms coincident with their terms of office.Nonlegislative citizen members shall serve at the pleasure of the Governor.All members may be reappointed. Appointments to fill vacancies, other than byexpiration of a term, shall be made for the unexpired terms. Vacancies shallbe filled in the same manner as the original appointments.

Legislative members shall receive such compensation as provided in 30-19.12, and nonlegislative citizen members shall receive such compensationfor the performance of their duties as provided in 2.2-2813. All membersshall be reimbursed for all reasonable and necessary expenses incurred in theperformance of their duties as provided in 2.2-2813 and 2.2-2825. Fundingfor the costs of compensation and expenses of the members shall be providedby the Department of Social Services.

The Department of Social Services shall provide staff support to the Panel.All agencies of the Commonwealth shall provide assistance to the Panel, uponrequest.

The chairman of the Panel shall submit to the Governor and the GeneralAssembly a quadrennial executive summary of the interim activity and work ofthe Panel no later than the first day of 2006 regular session of the GeneralAssembly and every four years thereafter. The executive summary shall besubmitted as provided in the procedures of the Division of LegislativeAutomated Systems for the processing of legislative documents and reports andshall be posted on the General Assembly's website.

(1988, c. 907; 1989, cc. 578, 579, 599; 1991, cc. 545, 588; 1992, cc. 79,716, 860; 1995, cc. 1, 481; 1996, cc. 491, 947, 1029; 1998, c. 618; 1999, cc.690, 808, 836; 2000, cc. 219, 305, 376, 384, 461; 2001, cc. 193, 809; 2002,cc. 650, 747; 2003, c. 885; 2004, cc. 907, 1008; 2005, c. 758; 2006, cc. 785,798.)