John and Matt are two children born to two different families, but both were born autistic. Suffering from autism since birth, neither John nor Matt could support himself. They were each considered permanently disabled and required the care of their parents. Now imagine that John’s parents got divorced while he was just 12 and Matt’s parents got divorced when he had turned 19 and had graduated high school. One of John’s parents would have to pay support to the parent that took care of him, even after he turned 18 and was considered “emancipated” under Virginia law. But Matt would not be so lucky, no support would be ordered and if the parent taking care of him could not afford to he would be under the care of the Commonwealth. If you are shaking your head because it doesn’t seem fair, you are not alone. Unfortunately that is the current law in Virginia, but there is a growing movement to change things.
Right now a Virginia statute, Va. Code Ann. § 20-124.2(c), allows for the continuation of child support in cases where the child is severely and permanently disabled, not self-supporting, and is living at home with the parent receiving support. The problem is the word “continuation.” It has been interpreted to mean that the child must be already receiving support in order for it to be awarded after they are emancipated. Emancipated in Virginia means they have turned 18, or graduated high school, whichever occurs later. For people like Matt in the earlier example that means they would not be awarded support because the divorce occurs after they are already emancipated.
This hardly seems fair. For one thing, the disabled child does not have any influence on when his parents may get divorced. Also, it means children in similar situations will be treated differently. Disabled children whose parents get divorced earlier will receive the support they need, while those whose parents get divorced later will not, even though they are equally in need.
May states have recognized the inherent problem with this situation and have fixed it either with new legislation or a court made rule that allows support for disabled children over 18. Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kentucky, Nevada, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wyoming are all states that have enacted new statutes to address this issue. Similarly, Alabama, Indiana, Minnesota, New Mexico, and Oregon have court made rules that permit child support to disabled children over 18. Unfortunately this leaves Virginia has one of the few states that has not yet tackled this problem.
There is still hope though as there has been a recent push in the Virginia General Assembly for new legislation that that would allow for support for people like Matt, even if their parents got divorced after they were emancipated. A new Virginia statute is likely to follow models such as the statutes in Arizona and Texas. Those statutes allow support for disabled children over 18 if certain factors are taken into consideration. These factors can range from the financial resources of the parents, to the degree of disability, to whether the child is institutionalized. One thing these statutes tend to have in common is that they generally require that the disability be developed before the child was emancipated. In other words, a child would not be eligible for support under the new law if they developed their disability after turning 18.
While legislation on this issue has not been passed yet in Virginia there is at least reason for optimism because there is growing momentum to change the law. Hopefully one day children with disabilities over the age of 18 will not be treated differently simply because their parents got divorced at different times.
The attorneys of Smith Strong, PLC can help you obtain child support that takes into account the special circumstances of caring for your disabled child. Our attorneys have a wide range of experience with child support issues and in particular dealing with support issues for spouses caring for a special needs child. Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg).
Va. Code Ann. § 20-124.2(c)