Virginia

Part of Real World Divorce: web edition | Kindle edition

Our questions regarding Virginia law and customs were answered by two attorneys. Our first interview was with Sanford Ain, a 1972 graduate of George University Law Center. He is admitted to practice in the District of Columbia, Maryland, Virginia and in front of the US Supreme Court. He has been recognized by Washingtonian Magazine as the D.C. area's best divorce lawyer and has been a fellow of both the American Academy of Matrimonial Lawyers and the American College of Trial Lawyers. Due to his focus on wealthy clients, Ain often works at the intersection of family law with trust and estate law and tax law. See http://www.ainbanklaw.com/ for Ain's full biography.

Ain represents a 50/50 mixture of male and female clients and tries as few cases as possible: "my firm as a whole is known to help people settle cases rather than to try them, though we have made law in all three jurisdictions."

Our second interview was with Aaron Christoff, a 2006 graduate of the University of Richmond who practices mainly in Virginia but is also licensed in the District of Columbia. Christoff was named a "D.C. Area Rising Star in Family Law in 2013" by the Super Lawyers folks. Christoff also represents an even mixture of male and female clients in cases that are primarily filed by women "plaintiffs" in divorce cases and "petitioners" in child support actions. Christoff tries approximately five cases per year. Christoff Christoff is partnered with Gregory Nugent, who represented Cameron Kennedy, a McKinsey employee with a $350,000 annual income who sued Peter Orszag, the former Obama Administration official turned Citibank executive, for $264,000 per year in child support. See http://www.nugentchristofflaw.com/ for a full biography.

Unlike in neighboring D.C., Virginia does not have a statutory presumption of joint physical custody, and Ain made it sound as though custody in Virginia is more traditional (in favor of the mother) as well as more dependent upon the whims and personal prejudices of the judge: "With younger judges it is very hard to predict if they have a bias in favor of mothers or fathers. The level of anti-father bias has diminished, but has not been eradicated. A more significant factor is how a case is prepared and presented and whom the judge believes."

Virginia allows a parent to collect child support until a child turns 18, typically, or to age 19 if the child is still a full-time high school student. The child support guidelines are found in section 108 of the Virginia Code ("20-108.2 is the statute, section B gives you the formula if it goes beyond the published guidelines," says Christoff). Unlike in some other states, there is no income maximum built into the guidelines. "A person's income can be in the millions of dollars per year and you can still calculate the presumptive amount of child support." Courts should impute at least some level of income to a non-working parent for the purposes of child support calculation. Here are some excerpts from the statute:

There shall be a rebuttable presumption in any judicial or administrative proceeding for child support under this title or Title 16.1 or 63.2, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support to be awarded.

For purposes of application of the guideline, a basic child support obligation shall be computed using the schedule set out below. For combined monthly gross income amounts falling between amounts shown in the schedule, basic child support obligation amounts shall be extrapolated.

[Emphasis added. Note that the legislators and attorneys who wrote this law did not understand the difference between "interpolation" and "extrapolation". The table below shows just a handful of the rows in the statute, which has a row for every $50 of monthly income.]

For gross monthly incomes above $35,000, add the amount of child support for $35,000 to the following percentages of gross income above $35,000.

G. 1. Sole custody support. The sole custody total monthly child support obligation shall be established by adding (i) the monthly basic child support obligation, as determined from the schedule contained in subsection B, (ii) costs for health care coverage to the extent allowable by subsection E, and (iii) work-related child-care costs and taking into consideration all the factors set forth in subsection B of § 20-108.1. The total monthly child support obligation shall be divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income. The monthly obligation of each parent shall be computed by multiplying each parent's percentage of the parents' monthly combined gross income by the total monthly child support obligation..

Despite the potentially unlimited child support available from ultra high-income defendants, children may be more profitable in other states in real-world scenarios. For example, the child of a $250,000 per year defendant in Massachusetts will yield $40,000 to a plaintiff for 23 years; the cash value in Virginia is $19,524 per year for 18 years, a difference of $568,568. Virginia's 2.6 percent of pre-tax income add-on is a lower ratio than in other states with unlimited child support, e.g., judges in neighboring Maryland will typically extrapolate at 10 percent of pre-tax income, plaintiffs in Massachusetts can get 11 percent of income above the guideline limit, and a Wisconsin child may yield 17 percent of a rich defendant's income. Among states that offer unlimited child support, but figured from after-tax income, Florida offers a similar level of profit (5 percent of after-tax). Pennsylvania extrapolates at 8.5 percent of after-tax income. Given current tax rates, a Virginia child would be more than twice as lucrative in California, which uses 11.52 percent of after-tax.

Christoff says that it is conventional for attorneys to use a software package called "VADER" to calculate child support.

As explained in the last excerpt above, Virginia is an income-shares state. A child support plaintiff's own income is also considered in calculating the ultimate monthly payment. The effect of income shares is small. Consider a plaintiff earning $10,000 per month suing a $25,000 per month defendant, resulting in a combined gross income of $35,000 per month. Child support from the above table for one child is $1989 and the defendant will pay 25/35ths of this, $1,421 per month. If the plaintiff had zero earnings, the row for $25,000 per month in gross income would be used and the defendant would pay $1,785 per month.

Shared physical custody results in a reduction in child support payments by the formula, starting when a child spends more than 90 of his or her nights with the non-custodial parent and "joint custody" is on a separate formula when a child is with one parent for more 110 nights per year or more. There is no statutory age at which a child's preferences regarding custody are considered. "Case law is consistent that a child who reaches age of approximately 14 should have his or her preferences be given great weight. It does depend on the level of maturity," says Ain. Christoff says "There is no magic number. The court has to find appropriate age and intellect. It is a subjective case-by-case standard. It could be a remarkable 13-year-old [who would be heard] but also could have a 17-year-old who is immature. A 15-17-year-old child is more likely to be heard."

Unlike in some other states, Virginia courts cannot order a parent to pay for college. Virginia courts can, however, order day care expenses to be paid by the higher-income parent: "Reasonable child care expenses is one of the factors in the child support guidelines," notes Christoff. "However, Virginia courts have said no to a woman who didn't work but wanted child support plus the cost of a nanny." Is that an absolute bar? "No," said Christoff. "In a high-income family where they've always had nannies, a plaintiff might be able to get a court order for the services of nanny."

As in other states, a prenuptial agreement cannot limit a court's ability to award custody or child support. Ain and Christoff agree that a "walk-away" prenuptial agreement is valid in Virginia as long as the following conditions are met: full disclosure or knowing and voluntary waiver of disclosure; each party represented by an attorney; and lack of duress (can't present it at the last minute). What constitutes "last minute"? "Many lawyers will not handle a prenup if it is to be signed less than a month before the wedding, though on the other hand we have plenty that are signed close to the wedding."

State background

A person who goes to college at the University of Virginia $106,440 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $40,000 per year ($29,851 after taxes). The corresponding man earns $74,000 per year ($50,795 after taxes). Virginia's collects 9.3 percent of state residents' income in taxes to run state and local government, roughly average for the United States (source: Tax Foundation). The top personal income tax rate is 5.75 percent.

The average annual cost of child care is $10,670 for an infant in Virginia and $8,320 for a four-year-old. The total cost of child care from age 0 through 12 is $59,630 in commercial centers or $50,404 in family care settings.

The male college graduate will have an after-tax spending power of $604,690 after 14 years of working (14 years of income minus taxes and the cost of college). After adjusting for USDA-estimated costs of caring for a single child, he would have a greater personal spending power by collecting child support when that support is $3,549 per month or more. Although this could be obtained by suing a $250,000 per year earner in New York, a defendant earning $1.14 million must be found in Virginia. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother pays at least $2,150 per month. That corresponds to pre-tax income of $494,308 per year.

The female college graduate will have an after-tax spending power of $311,474 over the same time period. She is in a position to spend more on herself when she can collect child support of at least $2,192 per month. This happens when a defendant earns at least $513,692 per year. If she is suing two fathers, however, each needs an income of only $199,200 for her to come out ahead compared to the college/work case.

Payments for taking care of one's own child are potentially unlimited in Virginia, but payments from the state government to take care of someone else's (as a foster parent) are about $6,388 per year.

Among Virginians surveyed in March 2014 by the U.S. Census Bureau, 93 percent of those collecting child support were women (compare to 98 percent in neighboring Maryland).

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

Ain gave the same answer that he did for D.C.: "The father has jeopardized himself. If he wants custody he would be well-served to spend more time raising his children. Litigation will take about a year to get resolved, so he has some time to clean up his act and could work toward a 50/50 division. On the other hand, the judge will be more interested in what happened before the divorce was filed than during posturing phase. The wife is very likely to end up with primary custody with the nanny.

Christoff says that the fact pattern of a wife outearning a husband is now roughly 10 percent of his cases. "Sometimes this is due to the wife's inheritance. In one case the wife is a partner in a law firm." Christoff concurs with Ain that the wife would be more likely to win primary custody and this would be "partially due to the fact that the dad is having an affair; it wouldn't be in the finding but it is something the court would consider."

What would the actual schedule look like? "Expect every-other-weekend," says Christoff, "typically Friday to Sunday or Friday to Monday morning with a midweek dinner visit, a couple of weeks during the summer, and alternating holidays. Courts don't do alternating weeks anymore. They like to build a schedule around alternating weekends. If mom argues that she is still breastfeeding then the schedule will be tweaked."

If the mother is victorious in her suit for sole custody will the father be ordered to pay child support despite the fact that he has minimal income? Ain: "A judge will impute income to the father based on the testimony of a vocational rehabilitation expert. The expert may look at photographers with comparable equipment." Christoff: "There is at least the statutory minimum of $65 per month." Would the surgeon mother deposit these checks? "I expect that she would take it. I have never heard of someone not depositing a check," he adds. Would she come back for more if his income rises? "It is very rare that an initial child support award is not challenged and controls until emancipation," says Christoff. "More often than not there will be a modification."

How much is at stake for the mother? If the father gets custody she will have to pay him $22,356 per year for 17 years, $380,052 total. Assuming that she can impute an income of $60,000 per year to him and get custody herself, she would receive from the father $9,060 per year or $154,020. Thus an all-out custody fight has a cash value to the mother of $534,072.

What about a shared custody situation? If the mother agrees to 50/50 custody, the Virginia guidelines call for multiplying the basic support times 1.4 ($31,298 per year based on her income and zero imputed income to the father), dividing the spoils to the parents according to time spent with the child, then dividing the responsibility according to income. The net would be payments of $15,649 per year from the mother to the father, a total of $266,036. The mother is thus $420,056 better off, after taxes, if she can block shared parenting and keep the child at least 75 percent of the nights. The mother will be $266 wealthier, after taxes, for each of those nights that the child spends with her.

How much could be spend in legal fees trying to secure that $266 per night pay rate? "Close to $1 million in fees through trial is possible if there are the resources to fight," says Christoff. "It depends on the jurisdiction. Fairfax will hear and resolve a case within a year of filing. Most of Northern Virginia is similar. It is uncommon for a case to take more than two years." What's a more typical cost for an upper-middle-class family? "If they are fighting about everything certainly it will cost hundreds of thousands of dollars per side in fees," says Christoff.

Given the disparity in income, what is the likelihood that the mother will be ordered to pay the father's legal fees of defending this lawsuit? Ain: "Legal fees are one component of the total case. He's not very sympathetic because he has not been devoting time either to children or profession. However, he may get some award of fees. It varies by the judge."

Can the father ask for alimony? Ain: "He would win only rehabilitative alimony and the probability of that is low."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Ain told us that it was hard to predict how a judge in Virginia would decide custody in this case. With no alimony at stake, therefore, the financial outcome of the case would be inextricably tied to the custody decision. As both parents would have at least some custody, both parents would end up having to invest in a house large enough to accommodate four children. Yet the custody decision would determine whether or not one parent could force the other parent to pay for that house.

What's at stake here? With a 75/25 split, the winning parent would collect $18,648 in child support according to the guidelines. This would result in the loser parent having $46,164 in after-tax income (filing single; source: ADP paycheck calculator) minus the $18,648 for a total of $27,516 (federal poverty level for family of 5) while the winner parent had $50,114 (filing head of household with the children as dependents) plus $18,648 for a total of $68,762 in annual spending power.

With 50/50 parenting time there would be no child support under the guidelines formula. Christoff notes that "There are extra burdens on the court if awarding no child support, so a judge might end up ordering the father to pay $100/month."

Does Christoff agree with the economists in Massachusetts who concluded that the main expense associated with a child was housing and therefore the true costs were not very different in the custodial and non-custodial homes? "The expenses are very similar whether a child is with a parent 10 percent time, 90 percent time, or anywhere in between. So it probably doesn't make sense to have parents with comparable income paying child support. But that's the law."

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

Ain: "It is likely that primary custody would be awarded to the mother. Home equity and savings would be split 50/50. The doctor's medical practice would be valued and then a division of that value given to the plaintiff. Child support would be at the statutory guidelines level." [Guidelines for two children and $275,000 in income yield tax-free payments of $30,288 per year.]

Christoff: "Mom will get primary custody. Kids will be with dad every other weekend. If he says he wants more time, courts are receptive. It comes down to practical considerations of his work schedule." Can the father cut back his work schedule so that he has more time available to the children? "He'll still have to pay her as though she had sole custody," expects Christoff. "Because there is a presumption that children are entitled to the level support that they had during the marriage. If he can keep earning his old amount of money and also take on more parenting time then that could work."

As in D.C. and Maryland, Ain predicts that the mother would also receive between $3,000 and $4,000 per month in alimony, possibly for the rest of her life. "The only guidelines for alimony are the standard of living during the marriage and the need and ability to pay and ability of recipient to contribute to her own support. Alimony could last until a party dies or the wife remarries."

Christoff agreed with Ain that a 50/50 property division was likely and that alimony would be paid "in the $3,000 to $5,000 per month range." However, he thought that alimony might be for as short a duration as three to four years.

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

Custody and parenting time yielded the same answer from Ain as in D.C.: "The woman would get primary custody and the father would get substantial visitation. It depends on what he can convince court regarding his ability to care for the baby." As in D.C., the Virginia father/defendant would be able to work towards a 50/50 parenting time arrangement. "Due to the short-term length of the marriage, there might be some modest rehabilitative alimony for the mother, but not a lifetime of alimony." There would not be a division of the father's premarital savings in favor of the mother. Child support would be per the Virginia guidelines [$20,484 per year based on the $275,000 per year in income; perhaps a total of $22,704 if a 3 percent yield on the $2 million in premarital savings is assumed and folded into the child support calculation.]

Christoff agreed: "She will get primary. She will not get the division of assets that she seeks, except that actual income received off those assets will be used for calculating child support and alimony, if any." Can a plaintiff bump up the payments by arguing that the $2 million in premarital savings could be yielding 6 or 9 percent and a judge should impute that income to the assets? "I have not seen a judge impute income to assets unless the wife was able to show that he was intentionally poorly investing to avoid child support." How about capital gains? "Actual realized capital gains, yes. Unrealized hypothetical ones, no."

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

As in D.C., the woman is likely to get primary custody and guidelines child support [$20,484 per year]. "This reminds me of cases involving professional athletes who have had children out of wedlock," notes Ain. "I represented one athlete who made $800,000 per month. The court awarded the mother $4,000 per month. The same case in California would have resulted in $20,000 per month in child support."

If the woman at age 25 marries a man who earns $100,000 per year, will her child support payments be reduced? As in D.C., Ain notes "The new husband has no obligation to support the existing child, so the recipient would argue that she should continue receiving payments at the top of the guidelines. The payor's argument would be that the mother's expenses are reduced now that she is part of a household with substantial income. There is a strong possibility of reduction due to the need being reduced."

Christoff says "I handle a handful of these cases. She gets the kid and guideline child support. If she gets married, that will not change. The modification standard is 'Is there a material change that justifies an adjustment to child support?' Becoming part of a household with $100,000 year in income could be considered a material change but it would be discretionary with the court."

Removal/Relocation

Christoff: "We call these 'relocation' and these are tough cases. The standard is that you have to show an independent benefit to the child. If it is just being done because mom has a great job offer or mom wants to be out there, it will be difficult to succeed in obtaining relocation." Is it easier if the children see the non-custodial parent only every other weekend as opposed to a true shared arrangement? "Yes, but mostly it comes down to whether or not non-custodial parent uses the time awarded. If the guy only uses 12 weekends per year then the woman has a better chance."

[Note that Christoff, in thinking of examples, naturally touched on the situation where a mother had won sole custody.]

How about a move within the Washington, D.C. area? "Crossing over to D.C. or Bethesda would not activate the same issues," notes Christoff, "because it would not necessitate a change in visitation."

Quirks

Virginia law favors a custodial low-income parents because the child support statute says that "'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 assigns different cash values to multiple children with the same parent because "Where there is an existing court or administrative order or written agreement relating to the child or children of a party to the proceeding, who are not the child or children who are the subject of the present proceeding, then there is a presumption that there shall be deducted from the gross income of the party subject to such order or written agreement, the amount that the party is actually paying for the support of a child or children pursuant to such order or agreement." I.e., the first person to sue a biological parent will get child support figured on the defendant's full income. The second person to sue will get child support based on the income minus child support being paid to the first plaintiff.

Changes on the horizon

Christoff didn't see anything major changing in the near term: "Virginia has already changed the alimony law to favor rehabilitative rather than permanent. Courts are getting more familiar with parenting arrangements that aren't the stereotypical: mom at home and dad working to pay the bills."

Closing Thoughts

Ain: "One of the things that we've seen in recent years is that it is increasingly common for custody plaintiffs to make allegations of abuse or sexual abuse by the other parent." Christoff concurs: "I see it more often than not in the initial stages of a lawsuit. A plaintiff will file for a protective order [restraining order] to get a leg up in a divorce case." Is his experience similar to that of Pam Sullivan, our Alaska litigator, who said that this option was something that only women took advantage of? "I can think of only one man who did it. He was 80 years old and claimed that his 50-year-old wife was physically intimidating and verbally assaulting him."

Based on his experience practicing in a jurisdiction (D.C.) where shared parenting is becoming more common and one (Virginia) where sole custody is more likely, what does Christoff think is best for children? What does he propose when negotiating settlements and mediating? "I think the 2-2-5-5 schedule is best and I see it more and more frequently," says Christoff. "Minimizing transitions is important and that's an argument for one-week-on, one-week-off, but 2-2-5-5 gives both parents a relatively long stretch for long weekend trips. Long weekend trips are really the only opportunity for trips with kids in modern society where both parents work."

What's keeping the lights on in law firms that handle custody and child support disputes? A sincere concern for children's welfare or a personal parental desire for cash? "There's no catch-all answer," says Christoff, "but if you've handled any cases involving professional athletes you'll know that there are plenty of people out there who have children for financial reasons. A lot of cases where I know that someone got pregnant after punching holes in condoms."

Summary

Virginia's emphasis on identifying a primary caregiver for the children and granting primary physical custody to that person means that pre-lawsuit planning in a two-career household can be richly rewarded. The parent who expects to file a lawsuit can voluntarily take over child care tasks from the unwary unsuspecting co-parent and create a "status quo" that will lead to a favorable custody result. This initial favorable custody ruling will lead to substantial child support profits as well as greater ease of relocation.

Virginia's uncapped and potentially unlimited child support guidelines do encourage for-profit pregnancies following casual encounters with high income individuals. However, the actual amounts are much more modest than in many other states and the certainty of the guideline number can reduce the intensity of litigation.

A Virginian seeking to profit from the custody and child support system would be well-advised to move across the river to Maryland, especially when planning to sue a high-income defendant. A move to Massachusetts or New York would be even more advisable.