WTDW Podcast Home Page – What To Do When… A Dummies Guide to the Legalverse
Welcome to What To Do When… a podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Scott Cardani 0:28
Welcome back. Scott Cardani with Jackie Critzer. Jackie, what’s on the docket today?
Jackie Critzer 0:34
Today we’re going to talk about child support. Child support between spouses between parents who owes a duty of support who has to pay it, how is it calculated? And and what goes into the calculation?
Scott Cardani 0:53
All right, well, let’s start at the beginning. Who’s responsible for paying child support?
Jackie Critzer 0:58
Actually, both parents are responsible, regardless of custody. Both parents are both parents owe a duty of support.
Scott Cardani 1:09
Wait a minute, are you sure that if I’m the custodial parent meeting, I have the child almost all the time, I’m paying him child support.
Jackie Critzer 1:18
I don’t mean that. What I do mean is that the code of Virginia requires that we analyze the income from both parents and ascertain what the custodial parents obligation is, versus the non custodial parent. So what the what the General Assembly has done is essentially created a formula to, I don’t want to use the word charge, but let’s use the word charge charge both parents with child support. If you have custody, that doesn’t mean you’re paying someone else child support, it means that there’s a calculation that says you would be responsible for so many dollars of need, and then the other parent will be responsible for so many dollars of need. So what the calculation first does is establishes how much need there is for a child or 10 children, if that’s how many you have.
Scott Cardani 2:11
And real quickly, I don’t want to get into it. We don’t want to get too deep into the minutiae, we’re just trying to basically the code assigns a number for the parents combined income. And then that number is again, taken back out based on your percentages. And then whatever that percentage is. So for instance, if Jackie’s responsibility based on her income was $300, and my responsibility based on my income was $900, then the difference would be $600, that I’m pushing across the table to Jackie, they don’t actually make you, Jackie, pay me 300 And me pay her 900. They just the calculation kind of works that out. So you have one number that’s been either pushed one way or the other.
Jackie Critzer 2:48
Well, and so where do these numbers come from? And how does that all work? It’s to parents, whether they’re married, or never married, doesn’t really matter or divorce, that is entirely irrelevant. It’s both parents income. So if you have a doctor and a pilot, it’s two people’s income, if you have a stay at home mom, who’s been a stay at home mom, and you’ve got, you know, an earner. How does that happen? How do you calculate support when you don’t have an earner in the equation?
Scott Cardani 3:17
Yeah, that’s really difficult. So I mean, there are, it’s usually assumed that both parents can make minimum wage in the child support calculation. So if you have a non earner at home, most likely that person is going to be tagged with minimum wage, and that calculation is going to be that’s going to be her side of the calculation. If there’s some reason. I mean, there’s always that you can get an expert and really add to that, but for the basic, what we’re talking about here, and you know, this is a dynamic thing, everything’s Child Child support is just you just plug some numbers in, and you get a figure. And it’s really not like that.
Jackie Critzer 3:55
Sometimes when you have a non earner, it’s because the person is a stay at home parent, and the children or child is not school age. And when that’s the case, there may not be charged with an income, just because they’re a stay at home parent. And occasionally, what you’ll see in that scenario is, okay, if if we’re going to impute maybe this person has a very high level of education and use to earn a whole lot of money, and now they’re at home, instead of making this large income. Sometimes what you’ll see is that the calculation will impute or assign an earnable wage for that party, but also include childcare costs, because now now the parties are going to have to pay for childcare. So the really the point is that how it’s calculated is really important. And sometimes, Scott, don’t you see where it hasn’t been done correctly?
Scott Cardani 4:52
Oh yeah. I mean, this is why we want to do this podcast because quite frankly, we both hate that you would have to get a lawyer involved in the child support calculation. Because in the world’s eyes, it seems like it’s such a no brainer. But there’s just so many elements of it. And I’ve actually had the pleasure, I’ll say, to go to administrative hearings where the state is setting the amount of child support. And, quite frankly, often I find the way they do it, they’re not calculating all the pieces of the puzzle. So that result can be very unfair to the person who’s getting the burden of child support. So we highly suggest that you get help with this and figure out what really is the cost of the child support? Because you know, there’s factors, there’s other kids, there’s all these things that go into it. But what we weren’t where we wanted to start was that both parents biological parents have a number to plug into this formula. And that’s where we start income is where we start. And really quickly on income, Jackie, what does that mean?
Jackie Critzer 5:55
Well, the the code says that income is all income from all sources. And so that means, if you’re a W2 employee, then your wages averaged over the year to date, perhaps that does include overtime sometimes, and there’s a time when you can exclude overtime. But sometimes it includes the overtime, it includes rental income, if one of the parties owns rental properties, that could be offset by the expense of the rental property as well. And it also includes self employment income. So if one of the parties owns a business or multiple businesses, it does require an analysis of what their real income is. And I’ve we’ve seen some difficulties, I think, Scott, you can mention the cash basis.
Scott Cardani 6:41
That’s, that’s a really hard one, there’s a lot of businesses that operate pretty much on cash. And a lot of people take that cash and put it in their pocket. So determining income can be really, really difficult. And as an attorney, we have some tools to do that we can do some subpoena power stuff, which means we can request that they answer questions or give bank statements. But when there’s a cash business, a lot of times that cash never hits the bank or anything else. But just to say, there’s lots of different ways to get information. And quite frankly, sometimes we can’t get the information we need. You know, I had once had a contractor, husband, who was all cash, and he put that cash in his pocket, he never used a bank account. When he filed his taxes. He always made like, $2,000, you know, all those things when he was doing $20,000 jobs. So what we kind of had to do is we subpoenaed the people he worked for and found out how much they paid him, you know, and so there’s ways to get around it. But quite frankly, sometimes there aren’t. There’s a lot of businesses, especially small restaurants and things like that, that can be really difficult to figure out what the income is of the person what their expense true expenses are. Same thing with rental income, if you have rental income. Obviously, you’re not, if you have a mortgage on that property, and you’re paying a $1,300 mortgage and making $1,500, you don’t get $1,500 worth of income. So all those things factor in and you really need to walk through that process to determine what real income is. And it’s income from any source. Remember that any source that you’re getting paid is income. And it doesn’t matter if it’s under the table income, it’s still income.
Jackie Critzer 8:18
Sometimes we would like to look at lifestyle. Also, if the lifestyle can’t be supported by the income they’re reporting, then we can dig into that a little bit. And I’ve have seen some judges take take notice when we present the right evidence. But here’s where you run into the difficulty there. They may not be able to support their lifestyle, the toys, the home, the cars that they have the vacations that they go on, based on the income they’re reporting, but that doesn’t tell us how much they’re really making. And so then there becomes, it’s still a problem, but it does sort of open the door to at least examining their income. You know, Scott, you said who owes a duty of support? You said the two biological parents? Well, let’s say for example, we’re both remarried. And so what about your step parent? What about your new spouse is their income in some way calculated into child support?
Scott Cardani 9:11
It’s not as flat out just not it’s it’s in a lot of people want that. But exactly like we were saying, say that mom married a very wealthy guy, and she has all the tools and all that in, we do the analysis and say, well, she has all these tools, but he’s also making 300 million a year. That’s probably where the toys are coming from. So yeah, I mean, it’s really important that way. Step parents income does not get included. But it can change how we look and analyze the calculation. When we look at the step parent is the stair step parent, one who’s dragging the income down could be one of those things where it doesn’t look as good because of the step parent but normally, it’s the other way I find that, you know, normally the step parent who makes it look like they’re making a lot more money than they are.
Jackie Critzer 9:54
Are there things Scott that are included in the child support calculation, at least here in Virginia. Yeah, that aren’t income based the other expenses for example, from from either parent that go into the calculation.
Scott Cardani 10:07
Yeah, well, what happens is once you establish that income and get the total amount of that income as, as I was saying, it’s added together. So you get a total monthly income, but then you can start taking deductions. So, for instance, if you have work related childcare, it’s very important work related childcare, you can put that into the calculation and it gets deducted in a way I mean, it’s not dollar for dollar, but it’s it’s a way of the formulas. I don’t want to explain all the formulas to iffy. But that work, really, child care gets deducted off the side of the person paying it. If both parents are paying work related child care, both parents get a deduction. This is not preschool. So And why I say that it’s really important. A lot of people, for instance, you were talking about to stay at home mom, she decides that little Johnny, she wants him in preschool starting at age three. She’s home.
Jackie Critzer 11:01
Scott Cardani 11:04
But so that doesn’t become work related childcare. And on the flip side of that, if they, you know, you decide that you want to in preschool instead of daycare, but it’s work related. You know, it then becomes an hour analysis. I’ve had judges say, well, the daycares $1,700 a month. But in the that area, there’s daycares that are only like $300 or $400 a month. So the difference isn’t counted.
Jackie Critzer 11:29
I wish we could find daycare for that inexpensive. Well, you really emphasize work related. So what about if a parent is trying to reenter the workforce and doing that they’re not working? They’re going to school? Because what about child care when they go into school?
Scott Cardani 11:43
Sorry, it’s not work related. This is very specific. And that’s why I said it’s got to be work related. If you’re in it, some people are like, well, that’s not fair, I need to get a job, or I get that, but that’s what the code says. And that’s what most judges stick to. So then you go into you got, the next big thing would be health insurance. So the child’s health can search insurance get this gets deducted, sorry, I’m getting tongue tied, but gets deducted from the parent who’s paying the health insurance. So that can be a tricky wicket, too, because the guy waltzes in and says, Why pay eight $800 a month in absolute in health insurance, and you’re like, that’s a lot for one kid. So you have to look at it. And you know, most plans have parent or individual I should say, and then the plans is individual plus one or individual married, and then individual with children or you know, all these kinds of things. And so you have to look at that insurance premium, break it down. And then there’s usually a separate premium for eyes and ears, and dental, ears, eyes and dental. Sure, but so all that stuff has to be calculated per the child or children in the child support calculation. So just because that pays $800 a month in health insurance, that doesn’t mean he gets to deduct 800 month, he gets to deduct the portion that’s equated to that child or belongs to that child’s need.
Jackie Critzer 13:07
What happens if you have children from a different relationship? Different marriage, just not children of this particular relationship? Do they do they get calculated in somehow?
Scott Cardani 13:20
They do. And it’s funny, because when I started, if you you and I experienced since had a child, and then I wouldn’t had other children, those other children weren’t counted initially, I’d always remember that because you were like, Well, you had this child, and now you’ve had others, why do you get a deduction, but that kind of became a moral issue for people. So now the standard is that the other kids get calculated. So if you have three other children, that’s going to pull down the amount of support that’s going to pull down on his income side. So for instance, we’re talking about husband, he’s covering the health insurance. He’s got the daycare, and he’s got three kids. That’s going to lessen his side tremendously. insurance paid. Okay, so anything else you can think of that gets deducted?
Jackie Critzer 14:04
Well, sure, there can be other things. But really, the code allows for a guideline, well, we’ve talked about as this is what gets plugged into the guideline. So it’s the income of both parents. And it’s the number of children being supported by this particular order. And the work related childcare expenses, as well as the insurance premiums just for this child or just for these children. And then what we call that is the guideline support amount. And the in Virginia, the code allows us to go up or down and to what we call deviate from that, which we’ll cover in another episode. But that’s the guideline child support. That’s what the court has to start with, and we do and then you have to decide how it’s going to be paid. And then you have to decide when can it be changed, which will also be addressed in a subsequent or next podcast?
Scott Cardani 14:58
What we wanted to do Today, is just lay out what basic child support is. And one of my biggest concerns, we get a lot of questions about this. And quite frankly, one of my biggest concerns is people do this by themselves a lot. And when they do it by themselves, a lot of times the result is not the way the code was designed. And so therefore, they get an very inequitable result. And then they’re coming to us to change it or fix it, it’s really important at the beginning of this to have the right thing. And one thing we didn’t cover, I want to say really quickly is, the number of days you have the child also impacts this order. So after 90 days, it’s really overnights. So don’t think because you had 90 afternoons, you get to count it, but the code is very specific about that. But after a 90 day period of you having the kids at least 90 plus days, then the amount of child support you may pay goes down to accordingly. So those are all the factors that get considered. And we just wanted you to have that awareness. And like I said, I’ve seen in some things, and I’ve been amazed at for whoever’s doing it, they have this way of doing it. And they’re like, and I’ll give you an example. One time I was in administrative hearing for the mother and the grandparents had the child. And they wanted mother’s income, which we were free to give and I was I went there kind of as moral support. Honestly, I didn’t think I’d have to do anything. And they said, Okay, here’s your support number. I’m like, Well, you haven’t figured out dad’s support was What’s that? We don’t do that. What do you mean, you don’t do dad? Well, it’s our policy, we don’t do that. And I thought, oh, my gosh, how many people are getting hammered and child support wrongly because that number isn’t real.
Jackie Critzer 16:43
And when you when you say administrative hearing, what you’re really talking about is the process a person or people can go through with the Division of Child Support Enforcement without attorneys, they you know, with attorneys, but they can go through the Division of Child Support Enforcement. And that’s why it’s an administrative, it’s not a judicial proceeding. It’s not in court, right?
Scott Cardani 17:03
Yeah. And what that means is they’re gonna set a number and you really are obligated to pay it, but you can appeal that number. So even if you want to, I mean, there’s nothing wrong with going the process. And I’m not saying every person, there’s evil, or they have this evil intent, but I’m saying that all these factors need to be considered to get a fair result. So I’m saying even if you do it, you have 10 days to appeal that I think it is, and then not sure if the 10 days right now top my head, but I think it’s 10 days, or it’s 30 days, but either way, you have to note your appeal immediately to put it in the court. So it doesn’t become an order permanently. So, you know, if you’re in that administrative hearing, you walk out and you’re like, I just don’t think this is right. Get it, get a lawyer contact me quickly, and have somebody go over that. So you know what you’re doing. And you can get a good number on that. So I think that’s really important. I think a lot of people are paying support they shouldn’t be paying or paying the wrong number.
Jackie Critzer 17:52
Sure. And sometimes it’s a cost benefit analysis, can I afford an attorney to get involved to go get it changed? And how much is that going to cost? versus how much am I going to save? So it’s a good idea, though, there are lots of tools on the internet, although, you know, your best bet is to contact an attorney who’s familiar with child support, and familiar with the guidelines and how to apply them.
Scott Cardani 18:15
Yeah, and remember this, all the tools on the internet and all the calculations are, it’s requisite, that you’re putting in the right information to get the right information out. So if you’re not putting in the right information, you may think, Oh, that’s a great tool, and I can do it. But if you don’t have the right information, because you don’t know. And a lot of those tools don’t say this is how you calculate income, for instance, you know, so, for instance, you know, income, we have three jobs, but I’m just going to count as main job because that might be all you know, to do. So it could really change the guidelines.
Jackie Critzer 18:46
Well, so in summary, your three main takeaways today, who owes a duty of support that’s both parents. And the second one is, is whose income matters, again, both parents and what’s included in the calculation, income of both parties, work related child care, insurance, the number of days or overnights actually that each parent has, and children not included in this particular relationship are not included under this order.
Scott Cardani 19:21
Jackie Critzer 19:22
We hope you’ve enjoyed this episode of what to do when for more episodes, be sure sure to subscribe to our podcast and we encourage you to check our archives to listen to previous topics Tune in next week for a new episode and some fresh perspective from Critzer Cardani.
We look forward to helping you in this venture and Good Luck!