New Shared Custody Support Guidelines

The Virginia General Assembly amended Section 20-108.2 of the Code of Virginia which sets forth guidelines for the determination of child support.

Under the accepted statutory scheme for determining child support, the Virginia Child Support Guidelines are derived using an "income shares" method. Generally speaking, this method is intended to provide the child with the proportion of the parents' income that he or she would have received had the family unit remained intact. This approach is based upon the traditional notion of child custody wherein one parent maintains sole physical custody of the child and the other parent, the noncustodial parent, exercises visitation rights as determined by the court. Clearly in this arrangement, the custodial parent bears the greater burden of the child's expenses such as food, lodging, transportation, etc.

What happens when the custody arrangement does not follow the traditional model but is more of a "joint," or "shared," arrangement, wherein both parents provide significant economic support for the child or children? Prior to the 1999 amendments, the threshold for the application of the shared custody guidelines applied when a parent had a child for 110 days per calendar year. The threshold under the amended statute is reduced to more than 90 days of the year. Once the threshold is reached, the custody share of each parent is the number of days that that parent has physical custody of a shared child, per year, divided by the number of days in the year. The shared support is then determined by the guideline amount as set forth in the statute, multiplied by 1.4.

Both the 90 day threshold (as opposed to 110) and the 1.4 multiplier are intended to eliminate the "cliff" effect which is the substantial change in support that can and often does result from a very few days of custody. This has been the cause of bitter and sometimes unnecessary legal disputes and the General Assembly has, wisely, determined to minimize the possibility of that occurrence.

Following the lead of our Commander in Chief, the General Assembly has attempted to determine what the definition of a "day" is. Prior to this legislative change, a "day" has been defined to include a complete 24 hour period, including overnight. Under the amended statute, while a "day", is defined as a continuous 24 hour period, a parent who has less time with the child over the 365 day period but has overnights which are not in a continuous 24 hour period gets a half day credit for those less than 24 hour overnights.

Three actions which the General Assembly refused to take are worth noting. First, the proposal that Virginia adopt the so called "covenant" marriage failed. Under this proposal, the General Assembly was asked to authorize a form of marriage in which the parties obtain certain premarital counseling and execute a declaration of intent that the marriage continue as a lifetime relationship and pledge to obtain marital counseling should difficulties arise. Under this proposal the period for living separate and apart for a "no-fault" divorce would be increased from 12 months to 24 months for parents with minor children and to one year, rather then six months, for parties with no children.

Also failing was a bill which would prohibit the "no-fault" divorce if the parties have minor children and if either party files a written objection to such divorce within the statutory time limitation.

In the realm of equitable distribution, an interesting proposal was put forward to expand the factors to be considered by the court when dividing marital property to include decisions made by the parties during the marriage regarding the parties' careers, education and certain parenting decisions. This proposal also failed to gain the support of the General Assembly.