Risks of Self-Help in Reducing Child Support
Child support is calculated by a formula purusant to Virginia Code Section 20-108.2. When there is more than one child, support is said to be "unitary," which means that the amount one pays the other parent for child support is a single amount for all of the children. When one child emancipates (turns 18 and has graduated high school, for example), one cannot simply reduce the child support obligation by that child.
If a divorced couple has 4 children, the parent paying child support cannot reduce his support by one quarter when the eldest child turns 18 and graduates high school. Child support must be recalculated and a new order entered in the court. There are two general exceptions to this rule.
First, if your previous order or agreement contains "self-executing language" which tells the parties when the child support adjustment will be made and exactly how to calculate the child support, then the parties can adjust the child support purusant to the directive in their order or agreement at the prescribed time and be free from court intervention.
Second, if an only child or the last of multiple children emancipates then the parent paying child support may simply cease paying support on the first day of the first month following the emancipating event.
However, if there are multiple children and only one has emancipated (read your last order to find the list of child support terminating events), and there is no self-executing language, then the parent paying child support has the burden and obligation to file a motion to modify child support with the court and that parent cannot adjust the amount he is paying until the court changes their previous order.
Recent unemployment problems have lead parents who are paying child support to believe they do not have to pay if they do not have a job. This is not true simply in and of itself. The parent paying support must file a motion with the court to reduce child support. There is a statutory minimum support amount of $65 per month. The court will look at Virginia Code Section 20-108.2 to determine an accurate award of child support purusant to the guidelines set out by the Legislature of Virginia.
If child support payments are going through the Division of Child Support Enforcement, then either parent can file with the Division to modify child support; however, if not, the burden falls on the party who wants to modify child support.
When one does not pay child support according to the last order, the court can enter a penalty in the form of a judgment, jail time, increased child support payments (to cover the basic child support as well as funds toward past due child support).
Take your child support obligations seriously and follow the Court Orders in place. If you need to make a change, follow proper channels. Taking matters into your own hands can be asking to spend time in jail. Going to court to defend against unpaid child support purusant to a court order might also mean that the nonpaying parent may have to pay tye attorney's fees of the innocent parent who was supposed to be receiving child support. The risk is great and self-help often backfires. Know your rights and responsibilities.