The obligation to pay child support in Colorado is based on the idea that both parents owe a financial responsibility to their child and the obligation to pay child support is the right of the child, NOT the right of the parent receiving child support. Colorado has developed guidelines that provide the presumptive child support obligation owed in most cases.
The goal of the guidelines is to provide child support based on the parties’ combined adjusted gross income and allocate child support in the amount of support that the child would have been given had he lived in an intact household.
Child support is not intended to cover every and all expenses related to having a child, rather it is intended to provide basic support for a healthy upbringing and the parents are expected to share the additional incidental costs of raising children as those expenses arise. Expenses such as school fees, extracurricular activities, orthodontic bills and similar costs are not covered by basic child support and are divided between parents outside of the child support obligation.
How do you determine child support?
In determining the amount of child support to order, the Court considers all relevant factors, including:
- The financial resources of the child;
- The financial resources of the custodial parent;
- The standard of living the child would have enjoyed had the marriage not been dissolved;
- The physical and emotional condition of the child and his or her educational needs; and
- The financial resources and needs of the noncustodial parent.
Although there is a set formula for determining child support, the Court can deviate from this formula with good cause. However, a parent’s obligation to pay child support is paramount to most other financial responsibilities and only special circumstances warrant exceptions. Claims that a parent cannot afford the guideline child support because they have too many credit card bills or not enough disposable income after paying for their expenses are not warranted exceptions. Circumstances such as serious illness, medical expenses, or other similar situations that are often beyond the control of the obligor are considered by the Court.
The determination as to how much a parent should pay is outlined in the Colorado child support guidelines under Colorado Revised Statutes §14-10-115. Some everyday situations that come into play with child support are: how many overnights each parent has with the child, who pays for health insurance and how much the child’s portion is, if there are any work- or education-related day care costs, any income earned by the child, as well as any extraordinary expenses.
Can you waive child support?
People often ask if they can just waive child support. A waiver of child support is not binding on the Court and it has been deemed against public policy to enforce. Child support is for the benefit of the child and while a parent can agree not to pursue child support or agree to a reduction in support, this agreement is not permanent and can be modified. So even if you have a written agreement that says one parent will not seek support from the other parent, this is unenforceable by the Court.
Child support can be modified at any time if there is a 10% change (up or down) in the obligation. However, the court does not automatically review the support amount, so it is the parties’ responsibility to seek a modification if they believe one is appropriate. Any agreed-upon modification needs to be done in writing, signed by both parties and submitted to the Court.
Child support is ordered by the Court and, in cases of divorce, is generally made retroactive to the date in which divorce was filed. In cases where the parents were never married, the obligation can go back to when an Allocation of Parental Responsibilities action is filed or back to the date of birth if an action to establish paternity is filed.
The obligation to support a child ends when the child turns 19 or is otherwise determined to be emancipated. Child support will automatically terminate when a child turns 19; however, if you have other children for which support is owed and they are not emancipated, you will need to modify the existing obligation for those children to reflect that support is now paid for one less child.
What happens when one parent is unemployed or underemployed?
Income imputation often applies when a parent makes an employment choice that reduces their income and would be detrimental to their child’s welfare (People v. Martinez, 70 P.3d 474 (Colo. 2003)).
Colorado has broadly defined these situations as fitting into two general categories: voluntary unemployment and voluntary underemployment.
Voluntary unemployment is when a parent chooses to remain unemployed. The action of remaining unemployed despite being employable may result in income being imputed.
To prove voluntary unemployment, the Court does not require that a parent show that a job exists or is available. The history of a parent’s employment will help the Court decide how to approach imputing income. For example, a person who is on unemployment but made minimum wage may be ordered to pay an amount equal to a person who had a minimum-wage job.
There are additional concerns for a parent who is facing imputed income due to voluntary unemployment. If a parent is taking action to avoid paying child support, this action can be seen as the parent putting their interests in front of their child’s interest.
Actions to remain unemployed and avoid responsibility to care for a child are not in the child’s best interest and can have consequences, such as reduced parenting time and decision making responsibilities.
Voluntary underemployment is where a parent takes temporary employment that is not intended to result in foreseeably higher income or the parent makes a career choice or seeks further education that unreasonably reduces support available and was not pursued in good faith.
A common example of voluntary underemployment is reporting or taking less income from a business in order to lower child support payments. Imputing income is one way to overcome this issue.
In underemployment cases, the Court looks at a parent’s intent in order to fairly allocate child support between the parties. In general, to impute income, the Court must only find the parent is “shirking” their obligation and then determine what the parent could reasonably contribute to support their child.
Calculating the Amount of Imputed Income
Once determinations as to whether a parent is voluntarily unemployed or underemployed is made, then the Court must calculate the amount to impute.
Calculating the gross income of an individual when it is not currently clear is a factual determination. The Court will look at past tax documents, pay stubs, bank statements, and other evidence providing the court with information of the parent’s income in order to calculate imputed child support.
To collect this evidence, a parent may have to answer questions in a deposition, provide testimony in court, or hand over documents for review by a professional, such as an attorney or CPA. Other parties, such as family members or business partners, may be asked to provide information in order for the court to get a full picture of the potential income.
Past-Due Child Support? Get Help
Are you falling behind on child support or need to enforce a child support order? If you answered yes, then the Colorado law firm of Cohen and Cohen can help you navigate the available options to collect or modify child support.
In Colorado, past-due child support may result in garnishment, denial of driver’s license or passport, seizure of tax refunds and bank accounts, poor credit, and judicial action.
Income sources that may be garnished include, but are not limited to,
- unemployment benefits, or
- worker’s compensation benefits.
In order to garnish wages (C.R.S. 8-73-102 and 14-14-111.5), the Court must issue a continuing Writ of Garnishment. The Writ will allow up to 65% of disposable earnings to be garnished. Bank accounts or tax refunds may also be garnished, as well as funds for legal fees that have been paid to an attorney and are held in trust.
There are also other collection tactics, which may be taken, such as pursuing a court judgment, placing a lien on property, or requesting that a party be held in contempt of court which may result in a fine or jail time. C.R.S. 14-10-122.
In addition, one of the most debilitating aspects of past-due child support are punishments such as
- suspension of a driver’s license,
- loss of a professional license,
- restrictions on recreational licenses (ex. hunting and fishing),
- denial of a passport, or
- misdemeanor or felony charges for leaving the state.
Modifying Child Support
Child support may be modified in order to make a situation fair for the parties involved. In order to modify it, you must have a substantial and continuing change to your circumstances, such as a permanent increase or decrease in income of one of the parties.
Decreased income of the person paying for child support or increased income of the person receiving child support or changes in time the child spends with each parent may result in a changed payment. However, if your circumstances have changed because of voluntarily adding expenses, such as a new car or home, then this will not be sufficient to warrant a change in the amounts paid.
If you have changed circumstances, then you will want to file your request with the Court as soon as possible. The Court’s order is generally retroactive, which means you will get relief back to that date your motion was filed.
Taking the Next Step to Collect or Modify Child Support Payments
The next step is to meet with an attorney to protect your interests, determine collection alternatives, or file a motion or Stipulation to Modify Child Support. If you need assistance in a matter involving child support, at Cohen and Cohen, we can help you understand your options, make important legal decisions, and will provide you with professional representation.