By: Audrey Henderson

Virginia Code § 20-108 provides that a court may modify a prior order that awarded child support.  To change the court-ordered child support payments, there must have been a material or substantial change in circumstances.  The party petitioning for an increase or decrease in child support bears the burden of proof by a preponderance of the evidence that a material change in circumstance occurred that justified that change.  Edwards v. Lowry, 232 Va. 110, 112 (1986).

A prominent example of a material change is when a parent has a change in financial circumstances.  If a parent were to motion for a reduction in child support payments, they must make a full and clear disclosure regarding his or her ability to pay.  Hammers v. Hammers, 216 Va. 30, 31-32 (1975).  However, there are some instances where the court will not modify a child support payment.  If a parent takes on a new business venture or changes employment, he or she bears the risk of losing money, yet they are still obligated to pay child support.  Antonelli v. Antonelli, 242 Va. 152, 156 (1991).  Furthermore, case law holds “the risk of reduction in income as a result of a parent’s intentional act, even if done in good faith, is insufficient grounds for reducing the amount of support due under a pre-existing order.”  Hamel v. Hamel, 18 Va. App. 10, 13 (Va. Ct. App. 1994).  Lastly, if a parent has a reduction in income that is due to his own voluntary acts or to his own neglect, he must still pay child support.  Hammers, 216 Va. at 31-32.

Another example of a material change in circumstance is when the needs of a child changes, including childcare costs.  Parents may argue that as their children get older they don’t need to be placed in childcare anymore, and thus a reduction in child support payments may be justified.  Shoup v. Shoup, 37 Va. App. 240, 254 (Va. Ct. App. 2001).  However, some parents argue for an increase in support because their children may attend private school or even participate in extra-curricular activities that require greater sums of money.  Joynes v. Payne, 35 Va. App. 386, 407 (Va. Ct. App. 2001).

Courts will also consider the change of physical custody from one parent to another as a material change in circumstance.  See Rippe v. Rippe, 3 Va. App. 506 (1986).  Also, if a parent intentionally withholds visitation rights from the other parent without a sufficient reason, the courts may consider this to be a material change in circumstance as well.  Va. Code Ann. § 20-108.

There are some instances where the court does not consider an event to be a material change in circumstance, and therefore will not increase, decrease, or terminate child support.  For instance, if a parent earns income from secondary employment for the purpose of paying off a previous court-ordered child support debt, that income will not be calculated into his or her gross income.  Va. Code Ann. § 20-108.2(C).  Additionally, the court will not take into consideration the financial responsibilities of having other children who are not a party to the current proceeding, and thus they will not likely modify the child support payments in such instances.  Id.

For information about how to initially calculate child support, please see my prior post: How Do I Calculate the Amount of Child Support I Owe or that is Owed to Me?