We are in the midst of an aural revolution. Many millions have invited electronic eavesdroppers into their homes, calling them Siri, Alexa, or some other name. Do you trust the spoken words from these devices? Do you trust “her” to hold your confidences? At some point, will you claim, “It’s my word against Alexa’s?” Are we seeing a societal shift from trusting written words to trusting spoken words? When, if ever, does an oral agreement outweigh a written one?
Get It In Writing, Always
Child support in Virginia depends, by legal default, on getting an agreement in writing. The guidelines appear (in writing) in Code of Virginia § 20-108.2. The decree is set out in writing by a Virginia judge. Payments from one parent to the other are made either electronically (with a printed receipt available) or by check (itself a legal document).
Should you and the mother of your children not have any court order guiding your now-separate lives, where does that put child support? Perhaps you two had an informal agreement.
Perhaps you said something simple like, “I’ll send you money when I can.”
Perhaps she said something simple like, “Send me $500 every month or I’ll have my big brothers Knuckles and Rocco ‘visit’ you.”
Anyway, if no court order exists, you might think your child support payments are in legal limbo. You might think that, until you consult a good child support attorney and find out the reality.
Are You Being Taken to Court for Child Support?
The mother of your children may haul you into court at any time if a court order is not in place spelling out child visitation, spousal support, child support and property division. You may not be touched by every aspect of family law — you and the children’s mother may never have married, for example, or shared common property, or established spousal support. None of that matters in the eyes of the law. Your children require financial support; Virginia says you and your wife have an obligation to support them.
The mother of your children may not have realized her financial interests were better protected by compelling you to pay child support. You two may have decided to “keep things simple.” Whatever your reasons, eventually your kids’ mother will find a legal way to get child support from you.
How Far Back Can the Court Go with Child Support Arrears?
Under Virginia Code § 20-108.1 the court can only retroactively order child support payments back to the date of a filing. If either parent files against the other for child support, that filing date is the beginning of court-mandated financial support to keep your children housed, fed, clothed, warm, and cared for.
The pertinent passage, § 20-108.1 (B) reads in part,
“Liability for support shall be determined retroactively for the period measured from the date that the proceeding was commenced by the filing of an action with any court provided the complainant exercised due diligence in the service of the respondent or, if earlier, the date an order of the Department of Social Services …”
Despite the protestations of your children’s mother, and those of her attorney, the court cannot make you pay child support for any time a legal proceeding was not in place or ongoing.
That’s the good news.
The bad news is, you may have exposed yourself to significant risk by having an informal arrangement (one not sanctioned by the court).
With a written agreement, even one not court-approved, you and the other party (the children’s mother; her attorney) can work to reach consensus on support details.
Doing nothing gives the custodial parent (presumably the mother of your kids, not you) a lot of power to come back at the paying parent, hard. She may not be able to recover child support from the time of separation to the time of filing (that is the heart of § 20-108.1 (B)), but she can demonstrate to the court that you have deliberately withheld financial help for your own children. She can show the financial strain your lack of good-faith payments has placed on her.
Think about it: which side will the court take, that of the mother and her (literally) poor, innocent children, or your side?
When Should You Begin Child Support Payments?
The best way to protect yourself from the wrath of either the courts or the mother of your children is to begin payments for your children’s care immediately after a separation or your acknowledgement of financial responsibility.
Even if a court filing, child support agreement or other legal paperwork is not in place, pay something to the mother so she cannot say you deliberately withheld support of your child(ren).
Paying something also keeps to a minimum any finding of arrearages, once the court does determine a specific dollar amount. Do not depend on Alexa or Siri for legal counsel. Meet with your attorney and get everything in writing.
At The Firm For Men we have seen and handled every type of child support case. We are experienced family law attorneys focusing on helping Virginia’s men preserve and protect their rights. Contact our offices online today or telephone us so that we can guard your rights, too.