SB718: Child support; imputation of income, custodial parent attendance in educational, etc., program.
Be it enacted by the General Assembly of Virginia:
1. That § 20-108.1 of the Code of Virginia is amended and reenacted as follows:
§ 20-108.1. Determination of child or spousal support.
A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.
B. In any proceeding on the issue of determining child support
under this title or, Title 16.1, or Title 63.2, the court
shall consider all evidence presented relevant to any issues joined in that
proceeding. The court's decision in any such proceeding shall be rendered upon
the evidence relevant to each individual case. However, there shall be a
rebuttable presumption in any judicial or administrative proceeding for child
support, including cases involving split custody or shared custody, that the amount
of the award which that would result from the application of the
guidelines set out in § 20-108.2 is the correct amount of child support to be
awarded. Liability for support shall be determined retroactively for the period
measured from the date that the proceeding was commenced by the filing of an
action with any court provided the complainant exercised due diligence in the
service of the respondent or, if earlier, the date an order of the Department
of Social Services entered pursuant to Title 63.2 and directing payment of
support was delivered to the sheriff or process server for service on the
obligor.
In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:
1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children, including the cost of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or
voluntarily under-employed; provided that income may not be imputed to the
a custodial parent when a child is not in school, child care services are
not available and the cost of such child care services are not included in the
computation and provided further, that any consideration of imputed income
based on a change in a party's employment shall be evaluated with consideration
of the good faith and reasonableness of employment decisions made by the party,
including [ decisions made in order to enroll in-
to attend ] and complete an
educational or vocational program likely to maintain or increase the party's
earning potential;
4. Any child care costs incurred on behalf of the child or
children due to the [ enrollment of the-
attendance of a ] custodial
parent in an educational or vocational program likely to maintain or increase
the party's earning potential;
5. Debts of either party arising during the marriage for the benefit of the child;
5. 6. Direct payments ordered by the court for
maintaining life insurance coverage pursuant to subsection D, education
expenses, or other court-ordered direct payments for the benefit of the child;
6. 7. Extraordinary capital gains such as
capital gains resulting from the sale of the marital abode;
7. 8. Any special needs of a child resulting
from any physical, emotional, or medical condition;
8. 9. Independent financial resources of the
child or children;
9. 10. Standard of living for the child or
children established during the marriage;
10. 11. Earning capacity, obligations, financial
resources, and special needs of each parent;
11. 12. Provisions made with regard to the
marital property under § 20-107.3, where said property earns income or has an
income-earning potential;
12. 13. Tax consequences to the parties
including claims for exemptions, child tax credit, and child care credit for
dependent children;
13. 14. A written agreement, stipulation,
consent order, or decree between the parties which includes the amount of child
support; and
14. 15. Such other factors as are necessary to
consider the equities for the parents and children.
C. In any proceeding under this title or, Title
16.1, or Title 63.2 on the issue of determining child support, the court
shall have the authority to order either party or both parties to provide
health care coverage or cash medical support, as defined in § 63.2-1900, or
both, for dependent children if reasonable under all the circumstances and
health care coverage for a spouse or former spouse.
D. In any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.
E. Except when the parties have otherwise agreed, in any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.
F. Notwithstanding any other provision of law, any amendments to this section shall not be retroactive to a date before the effective date of the amendment, and shall not be the basis for a material change in circumstances upon which a modification of child support may be based.
G. Child support payments, whether current or arrears,
received by a parent for the benefit of and owed to a child in the parent's
custody, whether the payments were ordered under this title, Title 16.1, or
Title 63.2, shall not be subject to garnishment. A depository wherein child
support payments have been deposited on behalf of and traceable to an
individual shall not be required to determine the portion of deposits which
that are subject to garnishment.
H. In any proceeding on the issue of determining child or spousal support or an action for separate maintenance under this title, Title 16.1, or Title 63.2, when the earning capacity, voluntary unemployment, or voluntary under-employment of a party is in controversy, the court in which the action is pending, upon the motion of any party and for good cause shown, may order a party to submit to a vocational evaluation by a vocational expert employed by the moving party, including, but not limited to, any interviews and testing as requested by the expert. The order may permit the attendance of the vocational expert at the deposition of the person to be evaluated. The order shall specify the name and address of the expert, the scope of the evaluation, and shall fix the time for filing the report with the court and furnishing copies to the parties. The court may award costs or fees for the evaluation and the services of the expert at any time during the proceedings. The provisions of this section shall not preclude the applicability of any other rule or law.
SENATE BILL NO. 718
Be it enacted by the General Assembly of Virginia:
1. That 20-108.1 of the Code of Virginia is amended and reenacted as follows:
20-108.1. Determination of child or spousal support.
A. In any proceeding on the issue of determining spousal support, the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court's decision shall be rendered based upon the evidence relevant to each individual case.
B. In any proceeding on the issue of determining child support
under this title or, Title 16.1, or Title 63.2, the court
shall consider all evidence presented relevant to any issues joined in that
proceeding. The court's decision in any such proceeding shall be rendered upon
the evidence relevant to each individual case. However, there shall be a
rebuttable presumption in any judicial or administrative proceeding for child
support, including cases involving split custody or shared custody, that the
amount of the award which that would result from the
application of the guidelines set out in 20-108.2 is the correct amount of
child support to be awarded. Liability for support shall be determined
retroactively for the period measured from the date that the proceeding was
commenced by the filing of an action with any court provided the complainant
exercised due diligence in the service of the respondent or, if earlier, the
date an order of the Department of Social Services entered pursuant to Title
63.2 and directing payment of support was delivered to the sheriff or process
server for service on the obligor.
In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:
1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children, including the cost of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or
voluntarily under-employed; provided that income may not be imputed to the a
custodial parent when a child is not in school, child care services are not
available and the cost of such child care services are not included in the
computation and provided further, that any consideration of imputed income
based on a change in a party's employment shall be evaluated with consideration
of the good faith and reasonableness of employment decisions made by the party, including decisions
made in order to
enroll in and complete an educational or
vocational program likely to maintain
or increase the party's earning potential;
4. Any child care costs incurred on behalf of the child or children due to the enrollment of the custodial parent in an educational or vocational program likely to maintain or increase the party's earning potential;
5. Debts of either party arising during the marriage for the benefit of the child;
5. 6. Direct
payments ordered by the court for maintaining life insurance coverage pursuant
to subsection D, education expenses, or other court-ordered direct payments for
the benefit of the child;
6. 7. Extraordinary
capital gains such as capital gains resulting from the sale of the marital
abode;
7. 8. Any
special needs of a child resulting from any physical, emotional, or medical
condition;
8. 9. Independent
financial resources of the child or children;
9. 10. Standard
of living for the child or children established during the marriage;
10. 11. Earning capacity,
obligations, financial resources, and special needs of each parent;
11. 12. Provisions
made with regard to the marital property under 20-107.3, where said property
earns income or has an income-earning potential;
12. 13. Tax
consequences to the parties including claims for exemptions, child tax credit,
and child care credit for dependent children;
13. 14. A
written agreement, stipulation, consent order, or decree between the parties
which includes the amount of child support; and
14. 15. Such
other factors as are necessary to consider the equities for the parents and
children.
C. In any proceeding under this title or, Title 16.1, or Title 63.2 on the issue of
determining child support, the court shall have the authority to order either
party or both parties to provide health care coverage or cash medical support,
as defined in 63.2-1900, or both, for dependent children if reasonable under
all the circumstances and health care coverage for a spouse or former spouse.
D. In any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.
E. Except when the parties have otherwise agreed, in any proceeding under this title, Title 16.1, or Title 63.2 on the issue of determining child support, the court shall have the authority to and may, in its discretion, order one party to execute all appropriate tax forms or waivers to grant to the other party the right to take the income tax dependency exemption for any tax year or future years, for any child or children of the parties for federal and state income tax purposes.
F. Notwithstanding any other provision of law, any amendments to this section shall not be retroactive to a date before the effective date of the amendment, and shall not be the basis for a material change in circumstances upon which a modification of child support may be based.
G. Child support payments, whether current or arrears,
received by a parent for the benefit of and owed to a child in the parent's
custody, whether the payments were ordered under this title, Title 16.1, or Title
63.2, shall not be subject to garnishment. A depository wherein child support
payments have been deposited on behalf of and traceable to an individual shall
not be required to determine the portion of deposits which that are subject to
garnishment.
H. In any proceeding on the issue of determining child or spousal support or an action for separate maintenance under this title, Title 16.1, or Title 63.2, when the earning capacity, voluntary unemployment, or voluntary under-employment of a party is in controversy, the court in which the action is pending, upon the motion of any party and for good cause shown, may order a party to submit to a vocational evaluation by a vocational expert employed by the moving party, including, but not limited to, any interviews and testing as requested by the expert. The order may permit the attendance of the vocational expert at the deposition of the person to be evaluated. The order shall specify the name and address of the expert, the scope of the evaluation, and shall fix the time for filing the report with the court and furnishing copies to the parties. The court may award costs or fees for the evaluation and the services of the expert at any time during the proceedings. The provisions of this section shall not preclude the applicability of any other rule or law.