SB 348 — Support orders; retroactivity, arrearages, party's incarceration.

SESSION ENROLLED VIRGINIA ACTS OF ASSEMBLY ––-- 2022 SESSION CHAPTER E527 An Act to amend and reenact §§ 16.1-244, 20-78.2, 20-103, 20-108.1, and 63.2-1918 of the Code of party'sVirginia, incarcerationrelating notto deemedchild voluntarysupport unemploymentand orspousal underemployment.ldsupport; support obligaRions;

Oretroactivity; [S 348] L Approved L Be it enacted by the General Assembly of Virginia:

Echild 1.support obligations;

Thatparty's §§incarceration 16.1-244,not 20-78.2,deemed 20-103,voluntary 20-108.1,unemployment andor 63.2-1918underemployment. of the Code of Virginia are amendDd and§ 16.1-244.

[S 348] Approved April 11, 2022 Be it enacted by the General Assembly of Virginia:

1.

That §§ 16.1-244, 20-78.2, 20-103, 20-108.1, and 63.2-1918 of the Code of Virginia are amended and reenacted as follows:

§ 16.1-244.

Nothing contained in this law shall deprive any other court of the concurrent jurisdiction to determine the custody of children upon a writ of habeas corpus under the law, or to determine the custody, guardianship, visitation or support of children when such custody, guardianship, visitation or support is incidental to the determination of causes pending in such courts, nor deprive a circuit court of jurisdiction to determine spousal support in a suit for separate maintenance.

However, when a suit for divorce has been filed in a circuit court, in which the custody, guardianship, visitation or suBportsupport of children of the parties or spousal support is raised by the pleadings and a hearing, including 4a pendente lite hearing, is set by the circuit court on any such issue for a date certain or on a motions docket to be heard within 21 days of the filing, the juvenile and domestic relations district courts shall bEbe divested of the right to enter any further decrees or orders to determine custody, guardianship, visitation or support when raised for such hearing and such matters shall be determined by the circuit court unless both parties agreed to a referral to the juvenile court.

In any case in which the jurisdiction of the juvenile and domestic relations district court has been divested pursuant to this section and no final support order has been entered, any award for child support or spousal support in the circuit court shall be retroactive to the date on which the proceeding was commenced by the filing of the action in the juvenile and domestic relations district court, provided that the petitioner exercised due diligence in the anyservice such case to a commissioner for a hearing or shall deprive the juvenile and domestic relationsto refer district courts of the jurisdictionrespondent. to enforce its valid orders prior to the entry of a conflicting order of any circuit court for any period during which the order was in effect or to temporarily place a child in the custody of any person when that child has been adjudicated abused, neglected, in need of services or delinquent subsequent to the order of any circuit court.

Nothing in this section shall deprive a circuit court of the authority to refer any such case to a commissioner for a hearing or shall deprive the juvenile and domestic relations district courts of the jurisdiction to enforce its valid orders prior to the entry of a conflicting order of any circuit court for any period during which the order was in effect or to temporarily place a child in the custody of any person when that child has been adjudicated abused, neglected, in need of services or delinquent subsequent to the order of any circuit court.

The entry of an order or decree of support for a spouse or for support and maintenance of a child under the provisions of this chapter or §§ 20-107.1 through 20-109 shall constitute a final judgment for any sum or sums in arrears.

In suits for divorce, annulment and separate maintenance, and in proceedings arising under subdivision A 3 or subsection L of § 16.1-241, the court having jurisdiction of the matter may, at any time pending a suit pursuant to this chapter, in the discretion of such court, make any order that may be proper (i) to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse, including (a) an order that the other spouse provide health care coverage for the petitioning spouse, unless it is shown that such coverage cannot be obtained, or (b) an order that a party pay secured or unsecured debts incurred jointly or by either party, (ii) to enable such spouse to carry on the suit, (iii) to prevent either spouse from imposing any restraint on the personal liberty of the other spouse, (iv) to provide for the custody and maintenance of the minor children of the parties, including an order that either party or both parties provide health care coverage or cash medical support, or both, for the children, (v) to provide support, calculated in accordance with § 20-108.2, for any child of the parties to whom a duty of support is owed and to pay or continue to pay support for any child over thehethe age of 18 who meets the requirements set forth in subsection C of § 20-124.2, (vi) for the exclusive use of 5 and possession of the family residence during the pendency of the suit, (vii) to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit, (viii) to of 5 compel either spouse to give security to abide such decree, or (ix) (a) to compel a party to maintain any existing policy owned by that party insuring the life of either party or to require a party to name as a beneficiary of the policy the other party or an appropriate person for the exclusive use and benefit of the minor children of the parties and (b) to allocate the premium cost of such life insurance between the parties, provided that all premiums are billed to the policyholder.

If the order is later of 5 dissolved or modified, a copy of the dissolution or modification shall also be certified, forwarded and entered in the system as described above.

E E.

TReThe court of 5 may deviate from the presumptive amount as provided in subsection H.

awardF. of child support, the court shall first make a determination of the amount of the award of and an pendente lite spousal support, if any, owed by one party to the other under this section.

LIf G.the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.

G.

If the parties Eavehave no minor children in common, the presumptive amount of the award shall be the difference between 27 percent of the payor spouse's monthly gross income and 50 percent of the payee spouse's monthly gross income.

relevantH. evidence relating to the parties' current financial circumstances or the impact of any tax exemption and any credits resulting from such exemptions that indicates the presumptive amount is inappropriate.

The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances or the impact of any tax exemption and any credits resulting from such exemptions that indicates the presumptive amount is inappropriate.

The presumptive formula set forth in this section shall only apply to cases where the parSies'parties' combined monthly gross income does not exceed $10,000.

3 J.

An order entered pursuant to this section shall have no presumptive effect and shall not 8ebe determinative when adjudicating the underlying cause.

R § 20-108.1.

The court's decision shall be renB.rendered based upon the evidence relevant to each individual case.

B.

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 supportan wasorder delivered to the sheriff or process server for service on the obligor.irecting payment of In any case in which the jurisdictionDepartment of theSocial juvenileServices andentered domestic relations district court has been divested pursuant to §Title 16.1-24463.2 and nodirecting finalpayment childof support orderwas hasdelivered been entered, any award for child support in the circuit court shall be retroactive to the datesheriff onor whichprocess theserver proceedingfor was commenced by the filing of the action in the juvenile and domestic relations district court, provided that the petitioner exercised due diligence in the service ofon the respondent.obligor.

In any case in which the jurisdiction of the juvenile and domestic relations district court has been divested pursuant to § 16.1-244 and no final child support order has been entered, any award for child support in the circuit court shall be retroactive to the date on which the proceeding was commenced by the filing of the action in the juvenile and domestic relations district court, provided that the petitioner exercised due diligence in the service of the respondent.

The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factorssfactors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:

(ii) 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, including to attend and complete an educational or vocational program likely to maintain or increase the party's earning potential;

and (iii) a party's current incarceration, as defined in § 8.01-195.10, for 180 or more consecutive days shall not be of 5 deemed voluntary unemployment or voluntary underemployment.

Direct payments ordered by the court for maintaining life insurance coverage pursuant to of 5 subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

There shall be a rebuttable presumption that the amount of the award which would result from the application of 5 of the guidelines is the correct amount of child support to be awarded.

In order to rebut the presumption, the Department shall make written findings in its order that the application of thEthe guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to support for other children in the household or other children for whom any administrative or court order exists, or relevant evidence pertaining to imputed income to a person who is voluntarily unemployed or who fails to provide verification of income upon request of the Department;, providedrilyprovided that income may not be imputed to the custodial parent because (i) a child is not regularly attOndingattending school, (ii) child care services are not available, or (iii) the cost of such child care services are not added to the basic child support obligation.

In addition, a party's current incarceration, as defined in § 8.01-195.10, for 180 or more consecutive days shall not be deemed voluntary unemployment or voluntary underemployment.

Additional factors that may lead to rebuttal of the presumption shall be of 5 determined by Department regulation.

E 2.