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Ely
Ely, Counselor at Law
Category: Family Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Ex-husband has custody of teenage son. He is asking for child

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Ex-husband has custody of teenage son. He is asking for child support. I am enemployed since 11/2011 and have gone back to school to get a degree. He originally reported working one job at 8.00 an hour but has been found to be working 2 jobs. He plans to quit second job as of August and only wants the one job used for figuring the child support. I agree with this only if they use minumun wage for me instead of the last salary from almost two years ago. They now would rather go to court for the hearing instead of trying to work this out. What is the law regarding this and what are my options? I do not have an attorney and have to travel two days for the court hearing next week so I am limited on funds.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

What is the law regarding this and what are my options?

Do you mean you are asking whether or not he can quit his job and then argue that it should not be used in calculation of child support for you?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 3 years ago.
I need to know what the guidelines are for support and what I can argue against. I am willing to not count the second job if they use minimum wage for me as that is what I could make if I get a job right now. I do not think they can use my past wage if they do not use his full potential amount as well. I just need to make sure there are no surprises on the court date.
Karen,

Thank you for your clarification.

For calculation of child support, neither parent can "under-employ" themselves. A party has to show that it is not "voluntarily unemployed or underemployed." Antonelli v. Antonelli, 409 SE 2d 117 - Va: Supreme Court 1991

This essentially restates Virginia Code § 20-108.1(B)(3) which states:

"Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party."

In other words, neither party can be underemployed and if he had no reason to quit that job, the Court may decide to still include its income in the calculation.

It is his choice to go for a hearing or not. There is a preset salary percentage calculation for child support (see here), but this can be altered if both parties agree to a lesser or higher amount or do not put child support in the orders all-together; the Court will only impose default child support if the parties cannot agree.

If finances is an issue for counsel, I can recommend three resources. First, here is a list of all pro bono work in the state...

http://www.abanet.org/legalservices/probono/directory/virginia.html

…and another list:

http://www.lawhelp.org

Finally, you may call your local law school and see if they have a legal clinic place available. The legal clinic is a free service the school(s) provide to the community. While they are often overbooked, they have openings sometimes. Here is the list law schools in your state:

http://www.hg.org/law-schools-virginia.asp

I hope this helps and clarifies. Best of luck.

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Customer: replied 3 years ago.
How does this apply for my salary? I was let go from my last job during downsizing after being employed with them for five years. I was on unemployment for a year during which time I could not find a new job because I do not have a degree or usable job skills. My job was in the radio industry and very specialized. I have gone back to school to remedy this situation.
Karen,

You did not "voluntarily" quit, but were let go - ergo, the Court should not determine that the amount should go off your previous salary, but the following factors:

1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children, including the cost of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party;
4. Debts of either party arising during the marriage for the benefit of the child;
5. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
6. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
7. Any special needs of a child resulting from any physical, emotional, or medical condition;
8. Independent financial resources of the child or children;
9. Standard of living for the child or children established during the marriage;
10. Earning capacity, obligations, financial resources, and special needs of each parent;
11. Provisions made with regard to the marital property, where said property earns income or has an income-earning potential;
12. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
13. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
14. Such other factors as are necessary to consider the equities for the parents and children.


(§ 20-108.1)

As such, the Judge generally has discretion to either calculate child support with your income based on (1) minimum wage or (2) the unemployment you are receiving now. Naturally, someone in your position would wish to argue for whatever calculated to be less child support.

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