Virginia Child Support Deviation Factors

Overview: The Rebuttable Presumption

Virginia child support law operates under a rebuttable presumption framework. Under Va. Code § 20-108.1(B), the amount calculated using the statutory guidelines is presumed to be the correct amount of child support. This means that:

• The guideline amount is the default starting point
• A party seeking a different amount bears the burden of proof
• Deviation is permitted only if the guidelines would produce an "unjust or inappropriate" result
• The court must make written findings explaining any deviation

This structure balances predictability with flexibility. The Income Shares Model provides a consistent baseline, but courts retain discretion to adjust support when unique circumstances warrant departure from the formula.

Legal Standard for Deviation

The statutory test for deviation is whether applying the guidelines would be "unjust or inappropriate in a particular case." This is a fact-intensive inquiry that considers:

• The Child's Best Interests: Virginia law prioritizes the welfare of the child above parental convenience
• Statutory Factors: The 14 factors enumerated in § 20-108.1(B) provide the framework for analysis
• Evidence and Documentation: The party seeking deviation must present credible evidence supporting their position
• Proportionality: The deviation must be proportional to the circumstances justifying it

The 14 Statutory Deviation Factors

Va. Code § 20-108.1(B) lists specific circumstances that may justify deviation. Courts must consider these factors when evaluating whether to depart from the guideline amount:

1. Actual Monetary Support for Other Family Members

If a parent provides support for other children (from prior relationships or in their household), this may justify deviation. However, the guidelines already account for this through the Adjusted Gross Income calculation (deductions for court-ordered support and theoretical support for other household children). Deviation on this ground typically applies when extraordinary circumstances exist beyond routine support obligations.

2. Arrangements Regarding Custody and Visitation

While the guidelines distinguish between sole custody (<90 days) and shared custody (≥90 days), specific custody arrangements within these categories may warrant deviation. For example:

• Extended summer visitation requiring duplicate expenses
• Long-distance parenting requiring extraordinary travel costs
• Custody arrangements near the 90-day threshold that don't fully reflect expense distribution

3. Earning Capacity, Obligations, Financial Resources, and Needs

This is one of the most frequently invoked factors. Considerations include:

• Earning Capacity: Voluntary underemployment may justify upward deviation (imputed income)
• Obligations: Extraordinary debt obligations (e.g., medical debt, student loans from supporting family) may justify downward adjustment
• Financial Resources: Significant assets or investment income may justify upward deviation
• Needs: Documented special needs of either parent that affect ability to pay

4. Standard of Living Established During the Marriage

For high-income families, courts may deviate upward to maintain a lifestyle consistent with the marital standard. Virginia has no statutory "cap" on child support, so support can exceed guideline amounts when the child would have enjoyed extraordinary advantages had the family remained intact.

5. Age and Physical/Mental Condition of the Child

Special circumstances include:

• Children with disabilities requiring extraordinary medical or therapeutic expenses
• Teenage children with higher expenses (transportation, activities, college preparation)
• Infants requiring specialized childcare or medical supervision

6. Age and Physical/Mental Condition of Each Parent

A parent's health limitations may justify deviation if they:

• Reduce earning capacity
• Increase medical expenses not otherwise accounted for
• Affect ability to provide care (reducing childcare costs)

7. Independent Financial Resources of the Child

If a child has substantial independent income (e.g., from a trust, Social Security survivor benefits, earnings), courts may reduce support. However, the child's resources should supplement, not replace, parental support obligations.

8. Provisions Made for Taxation

Post-Tax Cuts and Jobs Act (2018), dependency exemptions have less impact, but tax considerations may include:

• Child tax credit allocation agreements
• Educational tax credits (American Opportunity, Lifetime Learning)
• Tax implications of spousal support (now non-deductible for new orders)

9. Debts and Liabilities of Each Parent

Extraordinary, non-voluntary debts may justify deviation:

• Medical debt from family emergencies
• Debt incurred to maintain the child's standard of living during separation
• Marital debt disproportionately allocated in the divorce

Note: Voluntary consumer debt (credit cards, luxury purchases) generally does not justify deviation.

10. Extraordinary Capital Gains

One-time or non-recurring income (e.g., sale of property, stock options vesting) may justify upward deviation if the income reflects long-term earning capacity or lifestyle enhancements.

11. Any Special Circumstances

This catch-all provision allows consideration of unique factors not explicitly listed, such as:

• Cultural or religious obligations affecting expenses
• Extraordinary educational expenses (private school, tutoring for learning disabilities)
• Geographic cost-of-living differences

12. Impact of Deviation on Living Standards

Courts must consider whether a deviation would create undue hardship for either parent or the child. Extreme deviations that leave a parent unable to meet basic needs are disfavored.

13. Written Agreements Between the Parties

If parents agree to a support amount different from the guidelines, courts may approve it as long as:

• The agreement is in writing
• Both parties understand the guideline amount
• The deviation serves the child's best interests

However, the court is not bound by the agreement and may reject it if the deviation is excessive or harmful to the child.

14. Other Relevant Factors

Courts may consider any factor that bears on the fairness and appropriateness of the support amount, as long as it is supported by evidence and articulated in written findings.

Written Findings Requirement

Under Va. Code § 20-108.1(B), any deviation from the guidelines must be accompanied by written findings that:

1. State the amount of support that would have been required under the guidelines
2. State the amount of support actually ordered
3. Explain the specific reasons for the deviation
4. Reference the statutory factors relied upon
5. Articulate how the deviation serves the child's best interests

Failure to provide adequate written findings is reversible error on appeal. Virginia appellate courts have remanded numerous cases where trial courts deviated without sufficient explanation.

High-Income Cases and Extrapolation

Virginia's child support schedule extends to $35,000 combined monthly gross income. For income above this amount, the statute requires linear extrapolation of the schedule. However, courts may also deviate upward in high-income cases to:

• Maintain the child's lifestyle consistent with the marital standard
• Provide for extraordinary educational opportunities (private school, college savings)
• Account for luxury expenses the child would have enjoyed

Virginia has no statutory cap on child support, so extraordinarily high awards are permissible with proper findings.

Downward Deviations: High Bar

Courts are generally reluctant to order less than the guideline amount, as Virginia law prioritizes the child's financial security. Downward deviations are typically granted only when:

• The child has substantial independent income reducing needs
• The non-custodial parent pays extraordinary direct expenses (private school tuition, medical costs)
• The custodial parent has significantly higher income, and guideline support would exceed the child's reasonable needs

The burden of proof for downward deviation is substantial, requiring clear and convincing evidence.

Modification and Changed Circumstances

If circumstances change after an initial order (whether guideline-based or deviated), either parent may seek modification. Common grounds include:

• Significant income changes (±25% or more is typically material)
• Changes in custody arrangements (e.g., crossing the 90-day threshold)
• New extraordinary expenses arising (medical, educational)
• Changes in the child's needs as they age

The same deviation factors apply to modification proceedings. The court evaluates whether the original guideline amount (or deviated amount) is still just and appropriate.

Practical Considerations

If you believe your case warrants deviation from Virginia's child support guidelines:

• Document Everything: Gather receipts, medical records, school invoices, and financial statements supporting your position
• Calculate Guidelines First: Use our Virginia Calculator to establish the baseline amount
• Consult Experts: Obtain professional assessments for special needs or extraordinary expenses
• Be Specific: Clearly articulate which statutory factors apply and how
• Legal Representation: Deviation cases often require skilled advocacy
• Consider Settlement: If both parents agree to deviation, document the agreement in writing and ensure it's filed with the court

Related Topics

For a complete understanding of Virginia child support, also review:

• Virginia Child Support Formula Guide – Understand the baseline calculation
• Virginia Enforcement Guide – Learn about compliance and remedies
• How to File in Virginia – Step-by-step filing instructions

Frequently Asked Questions