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Understand the Interplay Between Spousal Support and Child Support (…and be sure your lawyer does, as well)

Every client who either receives or pays child support and spousal support (and certainly every lawyer handling a support case) needs to understand the interplay between these two very different types of support under Virginia law.

The basic concepts are simple: spousal support is counted as income to the recipient for child support purposes. It is also deducted from the income of the payor for purposes of determining child support. This is also true from a tax standpoint: spousal support is taxable to the recipient and deductible by the payor, whereas child support is neither counted as income nor deductible by the person paying it. While these ideas are simple enough to say, it is important to understand the practical impact of these concepts when litigating or settling a case involving child and spousal support in Virginia.

First, it is important to understand that spousal support must be determined before child support can be calculated under the Virginia child support guidelines. This is because “income” is very broadly defined by the Virginia child support statute, and it includes monies received as spousal support. But this appears to create a “chicken and the egg” type conundrum when determining how the two types of support should be “allocated”: spousal support is based in large part on the recipient’s need and the payor’s ability to pay. But how can those determinations of “need” and “ability to pay” be made if we don’t know how much child support is to be paid? That is to say, a person’s need for spousal support may be directly related to the amount of money they receive in the way of child support to cover the children’s expenses.

In litigation and/or settlement of cases involving both child support and spousal support, the attorneys for both sides will typically submit at least two worksheets. One is an “income and expense” worksheet demonstrating all of the person’s regular monthly expenses from all sources. One portion of that worksheet will typically “isolate” those expenses that are directly attributable to the children. The other worksheet will be a child support guideline, demonstrating what the Virginia presumptive child support guidelines require under the particular spousal support scenario the attorney is advocating. Here, it is important to remember that spousal support is not set by a presumptiove guideline, but is subject to the discretion of the court based on a number of different “factors”.

An experienced attorney will be able not only to calculate the “presumptive” amount of child support under different spousal support scenarios, but also to make the appropriate arguments and presentations of evidence in favor of his or her client’s demand for or against spousal support. With a keen eye toward these factors, an understanding of the tax implications of spousal support versus child support, and an intimate knowlege of the advantages, disadvantages, limitations and interplay of the two types of support, an experienced attorney can guide his or her client to a result that maximizes his or her financial advantage, whether in litigation or settlement.

Make sure the attorney you hire has the understanding and experience you need to make Virginia’s laws on spousal support and child support work to your advantage.

Ken Hodge
Rinehart, Butler, Hodge, Moss & Bryant PLC