Archive for the ‘child support’ Category

Child Support in Maryland, Virginia and the District of Columbia

Wednesday, August 6th, 2014

The amount of child support payable is determined under statutory guidelines in all three local jurisdictions.  The law in each jurisdiction provides that the amount of support is determined by applying the guidelines to the facts of the case.  That amount is presumed to be the correct amount of support.

Virginia revised its child support guidelines effective July 1, 2014. All three jurisdictions use a shared income model as the basis for the child support guidelines.   Shared income models are based on the notion that the amount of money needed to support the child(ren) should be based on the combined incomes of the parties.   The Court then allocates that amount between the parties in proportion to their respective incomes.  The shared income model also takes account of the number of children and whether custody is sole or shared.  All three jurisdictions add reasonable day care costs to the basic child support obligation.  Those costs are divided between the parties.  All three jurisdictions adjust for health insurance costs attributable to the children.  See DC Code Sec. 16.916.01, MD. Code F.L. Article Sec. 12-204, Va. Code Sec. 20-108.2.

One big difference among the jurisdictions is that in the District child support is payable for a child until age 21.  In Maryland and Virginia child support ends at age 18, except that support continues for a full time high school student until the earlier of high school graduation or the child’s nineteenth birthday.  Also, D.C. judges, unlike their Virginia and Maryland counterparts, will award support arrearages for a period of time up to 24 months prior to the filing of the complaint seeking support. See 16-916.01(v).
The Maryland guidelines do not explicitly apply to cases where combined monthly income exceeds $15,000, but Maryland case law suggests that it can be appropriate to determine child support in above guidelines cases by extrapolating at the marginal rate applicable at the highest guidelines bracket.  The most popular Maryland child support calculator, SASI-CALC, extrapolates in that way so that is frequently is used, at least as a starting point, in settlement negotiations.  Child support extrapolated from the top of the guidelines is also often ordered in Maryland cases even though it is not strictly the presumptively correct amount under the statute.  The child support calculator in the also popular “Kaufmann guidelines” does not extrapolate.

The District of Columbia child support guidelines apply up to combined monthly income of $20,000.  The District’s guidelines do not apply presumptively to cases where the parent’s combined income exceeds $20,000 per month, but support cannot be less than it would be at $20,000 combined income.  Extrapolation form the top of the guidelines is not approved.  DC law requires case by case justification of  support in excess of the top of the guidelines.   D.C Code Section 16-916.01(h).

Virginia recently revised its statute effective July 2014 to increase the income limit of the child support guideline to combined monthly income of $35,000, and adjust support payable at all income levels.  Although the Virginia statutory child support charts end at combined monthly income of $35,000, the statute explicitly provides for the rate of child support on monthly incomes exceeding $35,000.  For example, total support for two children increases $3.40 for each $100 dollars of combined income over $35,000 per month.  So no case is “above the guidelines” in Virginia. Va. Code Sec. 20-108.2.B

Where to File for Custody and Support in Virginia

Thursday, April 3rd, 2014

When separated spouses in Maryland and the District of Columbia require the aid of the court to resolve issues of support or custody they know where to file their case – in the local Circuit Court in Maryland and in Superior Court in the District of Columbia. And if they have been separated for less than the period required for an absolute divorce, they can include a request for limited divorce (legal separation in DC) in the support and/or custody suit.

Not so in Virginia. The circuit courts are the trial courts of general jurisdiction, and are the trial courts preferred by lawyers, including family lawyers. But the court with jurisdiction of minors, including custody and support of minors, and support of spouses, is the Juvenile & Domestic Relations District Court (“JDR”).  Although a complaint for spousal support can be filed in Circuit Court without also seeking divorce, the Circuit Court only has concurrent jurisdiction over child support and custody matters if there is a divorce case pending.   And, unlike in Maryland and DC, when the spouses have been separated for less than the required period (one year in general, six months with a written separation agreement and no minor children), a complaint for limited divorce is often not an option because in Virginia there aren’t any no fault grounds for limited divorce (called divorce from bed & board or, in Latin, a mensa et thoro ).
In this situation, the spouse needing custody or child support relief faces a choice. He or she can:

1. File a petition requesting custody and/or support relief in JDR;

2. Assert fault grounds and file a complaint for divorce from bed and board and for the custody and/or support relief in Circuit Court; or

3. Wait the one year period and then file a complaint in Circuit Court for final divorce (called divorce a vincula matrimonii) on separation grounds and for the custody and/or support relief.
Each of these choices has advantages and disadvantages which I will address in my next post.

Pendente Lite Relief in Virginia

Tuesday, January 28th, 2014

There are many divorce cases where only one spouse is employed and there are no significant liquid assets or those assets are all under the control of the employed spouse.

In such cases, the financially dependent spouse can seek an award of pendente lite support.  “Pendente lite” is Latin for “pending the litigation”.  It means temporary support until the divorce trial.

Pendente lite support hearings are short and the only issues considered are need for support and ability to pay.  Some jurisdictions have established guidelines for  pendente lite spousal support.

For example the Fairfax County formula is:

When child support is also payable – monthly spousal support equals 28% of the payor’s monthly gross income minus 58% of the payee’s monthly gross income.

When child support is not payable – monthly spousal support equals  30% of the payor’s monthly gross income minus 50% of the payee’s monthly gross income

Child support is generally determined under the child support guidelines. Those guidelines are also used to determine child support pendente lite.

Virginia Courts can also enter pendente lite orders on maintaining health insurance coverage for a spouse or children, responsibility for debt payments during the case, exclusive use and possession of the family residence during the case, payment of attorney’s fees and other costs of the suit, and custody of the children pendente lite . However, most courts are reluctant to rule on custody pendente lite.  This is because custody matters have scheduling priority and will soon be heard as a final matter so pendente lite relief is not necessary unless there is an emergency.  And the judges do not like emergencies, so if you claim you have an emergency it better be a real emergency.

The Court’s ruling on any issue at a hearing on pendente lite relief can be reviewed and modified at the final hearing.

Incarceration for Non-payment of Child Support

Thursday, June 23rd, 2011

          A couple of years ago I received a call from a friend at the public defender’s office in Arlington.  She had been contacted by the adult children of a father who had been incarcerated for civil contempt nine months ago and remained in custody.  Since it was not a criminal case the P.D.’s office could not represent him.  I agreed to take the case.

            One of the things I learned in reviewing the case history was that, at the time the defendant was incarcerated his salary was being garnished the maximum allowable amount for support and other divorce obligations, but it was less than the amount ordered.  Hoping to shake loose the money the custodial parent thought Father had, her counsel sought contempt and incarceration and prevailed.  While the Father was incarcerated, he lost his job and lost his home to foreclosure.  And Mother and the child were deprived of the money that he had been paying by garnishment.  Talk about lose-lose. 

            We were able to obtain father’s release from prison but he was unemployed for a long time thereafter.  The last I heard of the matter he still earned much less than he did at the time he was incarcerated.  Had the safeguards that, on Monday, the Supreme Court held were required by the U.S. Constitution been in effect in this case, maybe this bad outcome for all involved would have been avoided.

            I have also had my share of frustrating child support and other family law collection cases as Plaintiff’s counsel.  This is an area of important competing interests that must be balanced in arriving at sound public policy.  The Supreme Court struck the proper balance in the Turner case.  See my June 21st post for the Court’s ruling in that case.

Turner v Rogers- Further Thoughts

Wednesday, June 22nd, 2011

           The Supreme Court struck the right balance in this case. (See yesterday’s post  summarizing the ruling.) Maryland and D.C already require essentially what the Court said was necessary in this case.  Virginia does not expressly require a showing that the alleged civil contemnor lacks the ability to pay. 

            The Court was correct to tread very carefully in setting up any procedural hurdles in the child support collection process.  Late or non-payment of child support usually causes immediate substantial financial difficulty to the custodial parent and children.  The states and federal government recognize this in providing many special streamlined procedural rules and extra remedies to encourage prompt payment and facilitate collection of child support. 

         But there is no more fundamental right than personal liberty.  And there are (especially now) child support obligors who really cannot pay what they owe. 

           This is an area of important competing interests that must be balanced in arriving at sound public policy.  The Supreme Court struck the proper balance in the Turner case.

U.S. Supreme Court Addresses Incarceration for Non-payment of Child Support

Tuesday, June 21st, 2011

            Yesterday, the Supreme Court decided Turner v Rogers, 387 S. C. 142, 691 S. E. 2d 470, a case involving incarceration for contempt of court for failure to pay child support, something which is an every day occurrence in courts all over the country. 

            The petitioner argued that an alleged contemnor facing imprisonment should be entitled to counsel under the U.S. Constitution. Two important policies were in play – individual liberty vs. the interest in prompt and full payment of court-ordered child support.  The Court has previously ruled that civil contempt penalties, including incarceration, do not trigger federal constitutional guaranties because they are not punishment, their purpose is to coerce compliance with the court order.  The time-worn phrase is the Defendant “has the keys to the jailhouse in his pocket.”  If he pays – he walks.

         The Court declined to rule that defendants in civil contempt cases are entitled to legal counsel and, if indigent, one provided by the state.  But the Court held that federal constitution guaranties require substitute procedural safeguards to reduce the risks of erroneous incarcerations of child support defendants who lack the ability to pay.  These safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.  Since the record indicated that Turner was incarcerated without these safeguards, the Court vacated the ruling and remanded the case to the lower court.

Child Support Guidelines – Upper Limits on Combined Incomes

Thursday, March 10th, 2011

            Maryland recently revised its statute to increase the income limit of the child support guideline to combined monthly income of $15,000, and increase support payable at all income levels.  The Maryland guidelines do not explicitly apply to cases where combined monthly income exceeds $15,000, but Maryland case law suggests that it can be appropriate to determine child support in above guidelines cases by extrapolating at the marginal rate applicable at the highest guidelines bracket.  The most popular Maryland child support calculator, SASI-CALC, extrapolates in that way.

            The District of Columbia child support guidelines apply up to combined monthly income of $20,000.  The District’s guidelines do not apply presumptively to cases where the parent’s combined income exceeds $20,000 per month, but support cannot be less than it would be at $20,000 combined income.

            The Virginia statutory child support charts end at combined monthly income of $10,000 but the statute explicitly provides for the rate of child support on monthly incomes exceeding $10,000.  For example, total support for two children increases $5.10 for each $100 dollars of combined income between $10,000 and $20,000.  So no case is “above the guidelines” in Virginia.

Child Support in Maryland, Virginia and the District of Columbia

Wednesday, March 9th, 2011

We’ve been looking at various financial issues in divorce.  This post and the next two are about child support and how the local jurisdictions are similar and how they differ. 

            The amount of child support payable is determined under statutory guidelines in all three local jurisdictions.  The law in each jurisdiction provides that the amount of support determined by applying the guidelines to the facts of the case is presumptively the correct amount of support to be ordered.

            The District of Columbia revised its guidelines recently and all three jurisdictions now use a shared income model as the basis for the child support guidelines.   Shared income models are based on the notion that the amount of money needed to support the child(ren) should be based on the combined incomes of the parties and then allocated between the parties in proportion to their respective incomes.  The shared income model also takes account of the number of children and whether custody is sole or shared.  All three jurisdictions add reasonable day care costs to the basic child support obligation that is divided between the parties and all three jurisdictions adjust for health insurance costs attributable to the children.  See DC Code Sec. 16.916.01, MD. Code F.L. Article Sec. 12-204, Va. Code Sec. 20-108.2.

            One big difference among the jurisdictions is that in the District child support is payable for a child until age 21.  In Maryland and Virginia child support ends at age 18, except that support continues for a full time high school student until the earlier of high school graduation or the child’s nineteenth birthday.

Paying for the Children’s College

Wednesday, February 9th, 2011

Lots of parents of high school students are thinking about college this time of year – and how they are going to pay for it. Like many aspects of being a parent, divorce changes the how-to-pay-for-college issue in some respects.

In the absence of an agreement, the judge cannot order you or your spouse to pay the costs of your children’s college education in Maryland or Virginia. A spouse may agree to pay or contribute to college costs in return for the other parent’s promise also to contribute, or for some other promise.

You can agree to pay all college costs, but a frequently used cap is the cost of in-state tuition plus room and board at University of Maryland or University of Virginia. You can also define which costs are included and which costs are not included.

Other issues to consider are: Do the costs of any post-secondary training qualify or just traditional college? Will your child have to be a full-time student. Will there be a time limit on completion?

An agreement should clearly define the allocation of costs between the parents. Consider whether to provide for annual contributions to a Sec. 529 account or other account for the child or children. Generally, the agreement should provide that the parents’ obligation arises only after all 529 accounts and other resources of the child have been applied to college costs.

Make it clear that Mom and Dad are exchanging promises and neither of you are promising the children anything. As parents you reserve the right to jointly decide that your son or daughter is not ready for college or it is not the right choice for him or her and decline to pay for it.

Remember that once agreed by the parties and incorporated into the judgment of divorce the promise to pay for college is enforceable by a suit on the contract or by contempt of court. See Brodsky v. Brodsky, 319 Md. 92; 570 A.2d 1235; 1990 Md. LEXIS 45 (Md. 1990) where the court, construing the parties’ contract, held that Father had to pay for tuition at Boston University not a “more reasonably priced” college and he was not entitled to apply UTMA funds belonging to the child to his contractual obligation to pay college costs. Even if you are unable to reach a satisfactory agreement regarding college at the time of the divorce, you may be able to work it out when your child reaches college age.

 
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