Changing Child Support in Virginia Requires a Court Order
“What do you mean I’m on the hook for years of back child support? We agreed I wouldn’t need to pay any more! They can’t do this to me!”
Yes, they can.
No, the oral agreement doesn’t count.
No, it is not fair, but it is the law.
In Virginia, child support orders cannot change without a new court order, even if both parents agree. This article explains what child support orders are, why informal agreements don’t hold up, and how to properly modify a support obligation.
What Is a Child Support Order?
A child support order is a court order that sets a parent’s financial and healthcare obligations for their child. It is entered in the Juvenile and Domestic Relations District Court (JDR) or the Circuit Court and controls how much and when a parent must contribute to the child’s care.
Virginia courts use a statutory formula and set of guidelines to calculate the presumptively correct amount of support. The formula and guidelines consider both parents' incomes, custody arrangements, and the child’s needs, which include insurance and childcare[1]. While courts rely on these guidelines, either parent can present evidence to justify a different amount of monthly child support[2].
No parent can “waive” or forfeit child support. The right to child support belongs to the child, and parents cannot contract away or relinquish it. Any agreement attempting to waive child support is considered void and unenforceable as a matter of public policy[3].
Why Informal Agreements Don’t Work
Parents often make “side deals” about child support. Maybe one parent loses a job, or the child starts living with the other parent. They agree to stop payments, or to make smaller ones.
The problem?
An agreement between parents, even in writing, will not protect a parent from owing back child support if the other parent later wants to enforce the terms of the child support order. And, unfortunately, Virginia law does not excuse missed payments if the child support payer relies on their informal agreements.
Any unpaid amounts become “arrears”, which is a type of debt that is almost impossible to change, because past due child support payments are “judgments as a matter of law” and cannot be retroactively modified without a court’s approval[4].
In other words: once you miss a payment, it will permanently stick with you. Failing to modify the order can lead to:
- Building arrears with interest accruing on the full amount at 6% annual interest
- Wage garnishments and tax refund interceptions
- License suspensions (drivers and/or professional)
- Contempt of court actions (AKA “Show Causes”)
What do the Courts have to say about it?
- Acree v. Acree[5]
In this case, a couple divorced in 1978. Father was ordered to pay Mother $33.33 per week for child support for each of their three daughters ($99.99 total). Sometime later, the parents agreed that one of the daughters would live with Father and that they would suspend her $33.33 child support obligation, reducing Father’s total child support obligation to $66.66 per week. Father assumed full custody and financial responsibility for this daughter until she emancipated, but neither parent petitioned any court to approve their agreement.
In 1984, Father fell behind on child support for one of the daughters that still lived with Mother. Despite their agreement, Mother filed a motion to enforce the full $99.99 weekly child support obligation.
The Court of Appeals found that 1) Mother agreed to permanently relinquish custody of said daughter, 2) the parties agreed to eliminate Father’s support obligation until the daughter emancipated, and 3) both parties voluntarily followed through on this agreement. The Court refused to award Mother the arrears for the daughter who lived with Father, as it would let someone take advantage of a voluntary agreement after it had been fully carried out.
This case is the exception, not the rule, and it was narrowly tailored to Father’s situation.
- Goodpasture v. Goodpasture[6]
Suzanne and Barry Goodpasture divorced in 1976, with Suzanne assuming physical custody of their son. Barry was ordered to pay child support, which increased to $35 weekly in 1978. In 1981, Suzanne moved to Louisiana and wrote a letter to Barry’s attorney relieving Barry of the child support obligation. Barry, in turn, stopped paying child support.
Suzanne returned to Virginia almost two years later, but Barry did not resume child support, believing Suzanne needed to petition the court. Suzanne then sued Barry for all of the back child support accumulated between 1981 and 1987.
The Court of Appeals held that the parties could not modify the terms of a support order without court approval and further held that Suzanne did not forfeit her rights to pursue Barry for the back child support that accrued throughout the years.
The Court reasoned that letting a party make payments differently than what’s in the support order could cause ongoing “trouble and turmoil” and would put the parents’ personal interests ahead of what the court decided was best for the child[7].
Father tried to rely on the Acree case, but the Court rejected this argument, as there was no complete relinquishment of custody by Suzanne and Barry did not financially support the child, since Suzanne moved to Louisiana with the child.
- Smiley v. Erickson[8]
Father was ordered to pay $400.00 a month in November 1988 to Mother, and by March 1997, he owed Mother $36,975 in arrears. The parties agreed that Father would pay Mother $19,200 instead of the full $36,975, and Mother would forgive the remainder of the balance. Father paid her the lump sum of $19,200 but stopped paying his monthly child support afterwards. In June 1997, Mother filed a Show Cause against him.
The lower court held that Mother waived $17,775 in arrears when she accepted father’s $19,200 payment, but the Court of Appeals reversed, holding that the parties could not eliminate the back child support by agreement without court approval. Father was still on the hook, despite his agreement otherwise.
- Gallagher v. Gallagher[9]
The parties divorced on June 20, 1992. Under that Final Decree, Father paid child support ranging from $2,000 per month to $1,723 per month.
In 1995, Mother and Father agreed to reduce the child support to $1,100 per month. They followed the new payment arrangement for years but never submitted it to the court.
In 1999, Mother sought over $33,000 in arrears based on the child support amount under the Final Decree. Father argued that the parties agreed to change the support and followed the new arrangement for years, but the Court of Appeals held that the new agreement was not enforceable without court approval. Unfortunately, Father remained bound by the child support amount contained in the Final Decree and owed Mother the arrears.
When Do Courts Make Exceptions?
As seen in Acree, courts may recognize an exception in extraordinary circumstances, but that exception is narrow. Attempting to prove informal agreements years later, especially after relationships sour and/or records are misplaced, is a losing strategy.
How to Modify Child Support
Virginia allows you to request a modification of your child support obligation if you experience a material change in circumstances [10].
Common grounds for modification include but are not limited to a major change in income, a significant change in custody or parenting time, changes in the child's medical or educational needs, or increased/decreased expenses related to childcare or insurance. You can have one, or you can have many.
To modify an order, you must file a "Motion to Amend or Review Order" with the proper court[11]. It is best to prepare any supporting documentation to demonstrate the change in circumstances ahead of time.
If both parties agree to modify child support, they can submit a written agreement along with the Motion to Amend for court approval. If the court finds that the agreement is in the child’s best interest, it will enter a new order that complies with the agreement.
Only after the court enters a new order does the modification become enforceable. Until then, the previous order is still in effect.
Practical Tip: Never Assume. File a Motion.
If your circumstances change, the only way to change your support order is to petition the court.
Protect yourself. Protect your child. Don’t wait until you’re facing thousands in arrears, interest, and enforcement. Talk to a family law attorney and take steps to update your support order the right way.
Marcus Mitchell is a Pender & Coward attorney focusing his practice on family law and criminal and traffic law.
[1] Va. Code § 20-108.2
[2] Va. Code § 20-108.1
[3] Kelley v. Kelley, 248 Va. 295 (1994)
[4] Goodpasture v. Goodpasture, 7 Va. App. 55, 58 (1988)
[5] 2 Va. App. 151 (1986)
[6] 7 Va. App 55 (1988)
[7] Id. at 59.
[8] 29 Va. App. 426 (1999)
[9] 35 Va. App. 470 (2001)
[10] Va. Code § 20-108
[11] https://www.vacourts.gov/static/forms/district/dc630.pdf
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