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CHILD SUPPORT MODIFICATIONS: Court-Approved and Self-Executing

For most parents who are obligated to pay child support, there will likely come a time that the amount of child support they are obligated to pay will need to be revisited. There are many examples of circumstances that may give rise to a child support modification-involuntary reduction in income, emancipation of a child, changes in visitation-to name just a few. It is important to be aware of the law regarding child support modifications and how to ensure that the modifications are enforceable and valid.

Generally, a modification of child support occurs by the agreement of the parties or through a court proceeding. If the new child support amount is obtained through a court proceeding, the resulting order will be a valid and enforceable modification. However, it may surprise you to learn that an agreement between parties to revise child support will not be considered a valid and enforcement modification and will not alter the terms of the original order of support. A party who relies on the validity and enforceability of a written agreement may be exposed to substantial financial ramifications. The current law in Virginia requires that modifications of child support be court-approved before it is a valid and enforceable child support modification (with one exception addressed more fully below). And, because child support payments vest as they become due, a court will not have authority to modify child support retroactively unless a motion to modify child support is pending.

The following are examples illustrating the effects of failing to get an agreement of child support modification approved by the court:


Father and Mother enter into an agreement that Father will pay child support to Mother in the amount of $1,200 for the benefit of their minor children. The agreement is incorporated into their Final Decree of Divorce. Subsequently, the Father loses his job. The parties execute an addendum to the prior written agreement that modifies the Father's child support obligation from $1,200 a month to $500 per month until such time as the Father finds new employment, but the parties do not incorporate the addendum into a court order. After 18 months, Father obtains a new job and begins making child support payments in the amount of $1,000 per month. Five years after commencing his new job, Mother enforces the original agreement which ordered the Father to pay $1,200 per month. Because the parties' agreement was not court-approved, and the Father had not filed a motion to reduce his support obligation, the Mother successfully collects the arrearage of over $24,000.

Example #2

Father is court-ordered to pay Mother the sum of $950 per month for the support of their two minor children. Several years later, the parties agree that their older child can live with the Father. At that time, the Father reduces his child support obligation to the Mother from $950 a month to $500 per month. Two years later, the Mother successfully collects an arrearage in child support based on the Father's reduction in child support which was never court-approved. As a result, the Father owes the Mother an arrearage of almost $11,000 even though the older child has been in his custody for two years.

As you can see from the examples above, simply having an agreement to modify child support, even if it is in writing, is not sufficient to effectively modify a child support obligation. It ignores a significant "third party" to any support order - the court. Virginia recognizes that the court's review of child support is necessary to ensure that a child's welfare is adequately addressed and protected. Therefore, any agreement to amend an existing child support order should be incorporated into a court order so that it is valid and enforceable.

As mentioned above, there is an exception to the rule of law that all child support modifications must be submitted to the court for approval. In an effort to avoid parties having to go back to court with every modification, Virginia Code Ann. §20-109.1 allows a court to approve an agreement that provides for future modifications of child support without the need to return to court for said future modifications. But, this approval is granted only if the future modifications provision is self-executing. In order to be self-executing, the provision must refer to specific and objective standards for recalculating support. So, theoretically, parties may now plan ahead and agree as to how their child support will vary in the future by including a self-executing modification provision in their property settlement agreement. And, if future modifications occur, the self-executing terms of the agreement are applied and the new child support amount is valid and enforceable without court approval.

However, parties should use caution when drafting or relying upon a self-executing provision for modification of support. This is especially true when the provision does not provide specific values, dates, and terms for how to recalculate the new support amount. The appellate court has held that "provisions that require subjective determinations, such as elements of proof, interpretation, or witness credibility, cannot be self-executing simply because of the need for judicial resolution." Based on existing case law, even when parties' include a self-executing modification provision, the court does not always agree with the terms and have held that the provision is not self-executing as written. Therefore, it is advisable to still get court approval even if you have a self-executing provision to ensure that the modification is valid and enforceable. The following is an example of a parties' mistaken reliance on a self-executing child support modification provision in property settlement agreement:


Husband and Wife enter into a Property Settlement and Support Agreement which resolves the issue of child support for their four minor children. In the Agreement, the parties include a "self-executing" child support modification provision in order to avoid going to court for future modifications and to avoid having to get court-approval. It states that "child support shall be recalculated upon the emancipation of each child." In reliance on this paragraph, the parties recalculate child support when their oldest son emancipates. At that time, the Husband reduces his child support payments by $450 per month. Several years later, the Wife alleges that the terms of how to recalculate the new child support amount were unclear, alleges that the Husband voluntarily reduced his income and challenged the Husband's interpretation of the agreement. The Wife obtained a judgment for an arrearage of child support in an amount exceeding $36,000 based on Husband's failure to pay the original monthly child support amount. The court concluded that the terms of the child support calculation in the Agreement were not self-executing because they lacked specificity as to how to recalculate support.

Therefore, based on existing case law and the current Virginia Code, future modifications of child support should be submitted to the court for approval, even if you have an agreement in writing or self-executing child support modification provision in a court-approved agreement. The requirement of obtaining court approval for child support modifications may seem burdensome, but the public policy behind it is sound. Virginia recognizes that the court's review of child support is necessary to ensure that a child's welfare is adequately addressed and protected.

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