Legislation has been introduced in the Virginia legislature to increase child-support obligations a lot, even for parents with very low incomes. The legislation, SB 805, violates federal child-support regulations, such as 45 CFR § 302.56(c)(1), by imposing excessive child support obligations on thousands of parents that they will be unable to pay, and leave them unable to meet their basic needs. 45 CFR § 302.56(c)(1) requires state child-support guidelines to take into account the “ability to pay” and “the basic subsistence needs of the noncustodial parent.”
To comply with that federal regulation, adopted in 2016, Virginia’s neighbors, such as North Carolina, Maryland, and Tennessee, do not impose significant child support obligations on parents making less than $1300 per month, because parents that poor cannot afford to pay much child support while housing and feeding themselves. (In Maryland, the basic child support amount is only $50-$60 per month for parents making $1200 or less per month, and $109-$124 per month for parents making $1300 per month. Moreover, the Maryland “child support obligation” is reduced by a “self–support reserve” to enable noncustodial parents to subsist. See Md. Code § 12-204. In North Carolina, the basic child support obligation is only $50 per month for parents making $1300 per month. See North Carolina Schedule of Basic Support Obligations, effective January 1, 2023. In Tennessee, the child-support “guidelines include a SSR [self-support reserve] that ensures obligors have sufficient income to maintain a minimum standard of living based on 90% of the 2020 federal poverty level for one person ($957 gross income per month).” See page 11, Child Support Guideline.)
But under this Virginia bill to increase child support (SB 805), the basic child support obligation will be an unaffordable $264 to $665 per month for households making $1300 per month (depending on the number of kids they have). For parents making $550 per month, basic child support is between $114 and $287 per month, which is well beyond their ability to pay.
So under the bill, even parents way below the poverty level have to pay 20% to 52% of their income in basic child support — leaving them with too little money to pay rent! Even the poorest parents unable to pay child support are ordered to pay a big fraction of their income in child support under the bill.
Virginia law already fails to comply with the federal child-support regulation, by imposing child support obligations on parents making $0-$350 per month (most of whom simply cannot pay any child support). But SB 805 makes things worse by increasing child support obligations for households with incomes as little as $550 per month. At some high incomes, the increases in child support are well over 30%, and child support obligors have to pay tens of thousands of dollars per year in child support.
The bill’s proposed child support schedule mostly (but not entirely) follows the draft preliminary child support schedule presented to the Virginia child-support guidelines review panel in September by Jane Venohr.
But the bill imposes higher obligations than that draft preliminary schedule for a few incomes where the draft preliminary schedule left obligations unchanged or cut them (household incomes in the range from $550 per month to $750 per month have increased child support obligations in the bill but not the draft preliminary schedule), and the bill covers higher incomes beyond the range covered by the draft schedule, which ends at incomes of $6,000 per month. For example, it would increase the basic child support obligation, for just one kid, from $2,184 per month under current law, to $3,306 per month for parents making $42,500 per month. That’s an increase of 51%.
SB 805 increases the basic child support obligation of the typical noncustodial parent by around a quarter, by imposing obligations as high or higher than that draft schedule. The draft schedule notes that “The average increase across all income ranges is 24% for one child, 22% for two children, and 29% for three or more children.”
It is impractical and oppressive for the bill to increase child support obligations for parents making very low incomes such as $550 per month or even $2,000 per month. Those incomes are below the income of a full-time minimum wage worker in Virginia (the state hourly minimum wage is $12.41).
Yet the bill does that. The basic child support obligation goes up from $527 to $582 per month for parents making $2,000 per month with two kids.
And this is just part of the child-support many parents owe. SB 805 increases the single most important component of child-support obligations, the schedule of basic child support obligations contained in Va. Code § 20-108.2(B).
But that is just the beginning of what many parents owe in child support. Additional amounts of child support are also imposed on noncustodial parents under other existing provisions of Virginia law, such as for “health care coverage,” see Va. Code § 20-108.2(E), and for “child care” costs, see Va. Code § 20-108.2(F), which are awarded on top of the schedule of basic child support obligations. For low-income parents, those amounts can be bigger than the amount of basic child support, resulting in an overall child-support obligation that consumes most of their income (even before taxes). For example, a father was ordered to pay $673 in monthly child support on his monthly income of just $1300, for just two kids, back when Virginia’s child support obligations were lower than they are today, under the Virginia Court of Appeals decision in Herring v. Herring (2000).
As the Court of Appeals explained in that case, “the district court calculated the presumptive amount of support based on mother’s gross income of $1,600 per month and father’s gross income of $1,300 per month—a distribution of fifty-five and forty-five percent, respectively—at $675. After adding expenses of $667 per month for child care and $154 per month for health insurance coverage, the district court determined that father’s forty-five percent share of the total was $673 and ordered father to pay that amount each month.”
How many fathers making $1300 per month can possibly pay $673 per month in child support, after paying taxes and for food and shelter, as the father in Herring v. Herring ended up trying to do? But such a father would pay even more in child support today than he did back then. That’s because Virginia’s child support schedule was increased in 2014, as the legislature turned a deaf ear to arguments that thousands of parents were already unable to pay their existing child support obligations, and increased the amounts in Virginia’s schedule of basic child support obligations.
And SB 805 would increase child support obligations further.
Even if parents could pay the amounts contained in SB 805’s schedule of basic child support obligations (there are low-income parents who cannot), they still might not be able to pay their overall child support obligation. Even the portions of the child support schedule (in SB 805) that look reasonable on first glance may not be, because they are just part of the child support obligations imposed on many parents, which include things like additional child care expenses. The father in Herring v. Herring had an overall child-support obligation that was more than twice his
“basic child support obligation” under the child-support schedule.
Maryland law is less harsh on parents with very low incomes, but a news article in the Baltimore Sun noted that there are many low-income parents in Maryland who simply cannot pay what they are currently ordered to pay. Maryland’s child support guidelines are themselves excessive in what they impose on noncustodial parents.
At my income level, I would owe around $4,200 each month in basic child support under SB 805 if I were a noncustodial parent, up from about $3,000 under current law. But I have never spent that much on my daughter. I am not a noncustodial parent, but I and my wife have been parents for almost 18 years, and we have never spent anywhere near as much on raising our daughter as Virginia’s child-support guidelines award in child support for parents at the various incomes we have had over the years. My brother and his wife have also never spent as much on raising their kids as Virginia’s child support schedule awards in child support for families with their income.
Excessive child support levels can backfire by reducing the earning capacity of noncustodial parents and leaving them even less able to pay taxes and child support in the future. The Baltimore Sun quotes a former federal head of child support enforcement, Vicki Turetsky, pointing out that “Child support orders set beyond the ability of noncustodial parents to comply push them out of low-wage jobs, drown them in debt, hound them into the underground economy, and chase them out of their children’s lives.”
As the Baltimore Sun article notes, when noncustodial parents “fall behind on payments, they can lose their driver’s licenses and professional licenses,” making them even less able earn money and pay their debts.”The enforcement tactics can make it hard for them to catch back up on payments…Evidence shows fathers who get into deep debt are less engaged with their kids, contributing to greater rates of depression, alcohol use, poor health and progressively worse behavior by the children.”
Child support obligations are often set too high to begin with. When California commissioned the Urban Institute to investigate why parents were often behind on their child support, it reported that the number one reason for arrearages was that “orders are set too high relative to ability to pay.”
I was the intake attorney for a nonprofit law firm for 6 years. We didn’t handle child-support or family law cases, but despite that, I received innumerable letters and emails from people ordered to pay more than they could possibly afford in child support. It was obvious they were drowning in debt, and unlikely to ever be able to pay what they owed in full. SB 805 would make that problem worse.
UPDATE, JANUARY 5:
An additional reason child-support obligations are often excessive is the failure of child-support guidelines to take into account tax benefits and public benefits received by custodial parents in calculating their need for child support from the noncustodial parent. That seems to be a particular problem in Virginia. In Virginia’s child-support schedule, “there is no adjustment for the child tax credit or the Earned Income Tax Credit (EITC)” received by custodial parents, something SB 805 does not change.
As comments pointed out in response to this blog post when it was cross-posted at Bacon’s Rebellion:
1. “Child support obligations are often excessive in Virginia because Virginia’s child support guidelines don’t take into account the tax benefits and other public benefits custodial parents get on account of their kids (like the $2,000 per child tax credit, subsidized housing, TANF, etc.), in calculating the amount of child support that the custodial parent needs and the non-custodial parent owes. That results in the non-custodial parent paying expenses of the custodial parent’s household that are already paid for by the tax code and other sources — expenses low-income noncustodial parents can’t afford to pay while also paying for their own basic needs. For example, Virginia Code Section 20-108.2(C) says, “‘Gross income’ shall not include: ‘1. Benefits from public assistance and social services programs as defined in § 63.2-100; 2. Federal supplemental security income benefits…” Virginia law also defines as income to the noncustodial parent things that aren’t income under the federal tax code. On the other hand, as LarrytheG has already pointed out in his comments, “custodial parents will get the child tax credits (and other credits).” But these tax credits aren’t treated as income to the custodial parent in calculating the child support needed to be paid to the custodial parent, even though they are effectively income to the custodial parent.”
2. “custodial parents will get the child tax credits (and other credits).”
3. “Yes, in Virginia, that’s apparently even more true than in other states. The custodial parent gets the child and other tax credits and public benefits, which don’t reduce the noncustodial parent’s child-support obligation. ‘In Virginia, unlike most states, judges have no authority to order the custodial parent to waive the child tax exemption or credit so that it may be claimed by the non-custodial parent, even if the non-custodial parent provides most of the financial support for the child. See Floyd v. Floyd, 436 S.E.2d 451, 463 (Va. 1997); Pearlene Anklesaria, Child-Related Tax Breaks for Divorced Parents, 22 J. Am. Acad. of Matrim. L. 425, 426-27 (2009) (contrasting Virginia law with the law of most states). The custodial parent is also more able than the non-custodial parent to claim the Earned Income Tax Credit.’ That’s from a blog post discussing the current Virginia child-support guidelines enacted in 2014. Those tax credits and other public benefits don’t reduce the non-custodial parent’s child support obligation. See, e.g., Va. Code § 20-108.2(C) (defining ‘gross income’ to exclude ‘Benefits from public assistance and social services programs’)'”
Virginia law does direct judges to take into account one specific type of tax credit — daycare tax credits — in determining whether to add to the basic child support obligation. The child-support guidelines say, “Upon the request of either party, and upon a showing of the tax savings a party derives from child-care cost deductions or credits, the court shall factor actual tax consequences into its calculation of the child-care costs to be added to the basic child support obligation.” But that is not true for other tax credits or public benefits received by the custodial parent. Nor does it affect the basic child support obligation imposed on noncustodial parents, which could consume most of their income if they have low incomes and multiple children. (Under SB 805, the basic child support obligation would be $665 per month for parents whose income is $1300 per month and who have six kids). Such child-care tax credits can only be taken into account in determining whether to add daycare expenses to the basic child support obligation. And they can only be taken into account if the noncustodial parent is able to show the “tax savings” a custodial parent is getting, which may be hard to do, requiring access to current paychecks, tax returns, and knowledge of tax laws that many parents lack (most parents are not represented by a lawyer and have no tax accountant).
