20-108.1 - Determination of child or spousal support.
§ 20-108.1. Determination of child or spousal support.
A. In any proceeding on the issue of determining spousal support, the courtshall consider all evidence presented relevant to any issues joined in thatproceeding. The court's decision shall be rendered based upon the evidencerelevant to each individual case.
B. In any proceeding on the issue of determining child support under thistitle or Title 16.1 or Title 63.2, the court shall consider all evidencepresented relevant to any issues joined in that proceeding. The court'sdecision in any such proceeding shall be rendered upon the evidence relevantto each individual case. However, there shall be a rebuttable presumption inany judicial or administrative proceeding for child support, including casesinvolving split custody or shared custody, that the amount of the award whichwould result from the application of the guidelines set out in § 20-108.2 isthe correct amount of child support to be awarded. Liability for supportshall be determined retroactively for the period measured from the date thatthe proceeding was commenced by the filing of an action with any courtprovided the complainant exercised due diligence in the service of therespondent or, if earlier, the date an order of the Department of SocialServices entered pursuant to Title 63.2 and directing payment of support wasdelivered to the sheriff or process server for service on the obligor.
In order to rebut the presumption, the court shall make written findings inthe order, which findings may be incorporated by reference, that theapplication of such guidelines would be unjust or inappropriate in aparticular case. The finding that rebuts the guidelines shall state theamount of support that would have been required under the guidelines, shallgive a justification of why the order varies from the guidelines, and shallbe determined by relevant evidence pertaining to the following factorsaffecting 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 ofvisitation travel;
3. Imputed income to a party who is voluntarily unemployed or voluntarilyunder-employed; provided that income may not be imputed to the custodialparent when a child is not in school, child care services are not availableand the cost of such child care services are not included in the computationand provided further, that any consideration of imputed income based on achange in a party's employment shall be evaluated with consideration of thegood faith and reasonableness of employment decisions made by the party;
4. Debts of either party arising during the marriage for the benefit of thechild;
5. Direct payments ordered by the court for maintaining life insurancecoverage pursuant to subsection D, education expenses, or other court-ordereddirect payments for the benefit of the child;
6. Extraordinary capital gains such as capital gains resulting from the saleof the marital abode;
7. Any special needs of a child resulting from any physical, emotional, ormedical condition;
8. Independent financial resources of the child or children;
9. Standard of living for the child or children established during themarriage;
10. Earning capacity, obligations, financial resources, and special needs ofeach parent;
11. Provisions made with regard to the marital property under § 20-107.3,where said property earns income or has an income-earning potential;
12. Tax consequences to the parties including claims for exemptions, childtax credit, and child care credit for dependent children;
13. A written agreement, stipulation, consent order, or decree between theparties which includes the amount of child support; and
14. Such other factors as are necessary to consider the equities for theparents and children.
C. In any proceeding under this title or Title 16.1 or Title 63.2 on theissue of determining child support, the court shall have the authority toorder either party or both parties to provide health care coverage or cashmedical support, as defined in § 63.2-1900, or both, for dependent childrenif reasonable under all the circumstances and health care coverage for aspouse or former spouse.
D. In any proceeding under this title, Title 16.1 or Title 63.2 on the issueof determining child support, the court shall have the authority to order aparty to (i) maintain any existing life insurance policy on the life ofeither party provided the party so ordered has the right to designate abeneficiary and (ii) designate a child or children of the parties as thebeneficiary of all or a portion of such life insurance for so long as theparty so ordered has a statutory obligation to pay child support for thechild or children.
E. Except when the parties have otherwise agreed, in any proceeding underthis title, Title 16.1 or Title 63.2 on the issue of determining childsupport, 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 tothe other party the right to take the income tax dependency exemption for anytax year or future years, for any child or children of the parties forfederal and state income tax purposes.
F. Notwithstanding any other provision of law, any amendments to this sectionshall not be retroactive to a date before the effective date of theamendment, and shall not be the basis for a material change in circumstancesupon which a modification of child support may be based.
G. Child support payments, whether current or arrears, received by a parentfor the benefit of and owed to a child in the parent's custody, whether thepayments were ordered under this title, Title 16.1, or Title 63.2, shall notbe subject to garnishment. A depository wherein child support payments havebeen deposited on behalf of and traceable to an individual shall not berequired to determine the portion of deposits which are subject togarnishment.
H. In any proceeding on the issue of determining child or spousal support oran action for separate maintenance under this title, Title 16.1, or Title63.2, when the earning capacity, voluntary unemployment, or voluntaryunder-employment of a party is in controversy, the court in which the actionis pending, upon the motion of any party and for good cause shown, may ordera party to submit to a vocational evaluation by a vocational expert employedby the moving party, including, but not limited to, any interviews andtesting as requested by the expert. The order may permit the attendance ofthe vocational expert at the deposition of the person to be evaluated. Theorder shall specify the name and address of the expert, the scope of theevaluation, and shall fix the time for filing the report with the court andfurnishing copies to the parties. The court may award costs or fees for theevaluation and the services of the expert at any time during the proceedings.The provisions of this section shall not preclude the applicability of anyother rule or law.
(1986, c. 461; 1988, c. 907; 1989, c. 599; 1990, c. 567; 1991, cc. 545, 588;1992, cc. 543, 716, 860; 1993, cc. 520, 534; 1994, c. 764; 1995, c. 261;1996, c. 491; 1998, cc. 592, 612; 2001, c. 809; 2004, cc. 204, 1008; 2006,cc. 785, 798; 2007, c. 872; 2009, c. 713; 2010, c. 176.)