In a Colorado, or Denver area divorce, custody, or child support case, child support runs until the youngest child turns 19, barring extraordinary circumstances. While wrapping up a divorce case the other day, my client inquired as to whether he would need our services anymore. I explained to him that he might. In turn, he asked, “why?” I explained the fact that child support runs until 19, and with a young child, there was an extremely likely chance that either side would seek a modification of child support at some point over the years. Many people are initially of the perception that once orders are entered, the case is done and that’s-that. On the contrary, we know that final orders, particularly when there are young children involved, are just the beginning. In most cases we see at Plog & Stein, it is not uncommon to see at least one, or more, modifications of child support over the years.
Child support modifications are governed by Colorado Revised Statute 14-10-122. The general standard for modifying child support, as set forth in statute is that child support can be changed, “only upon a showing of changed circumstances that are substantial and continuing….” Statute clarifies these vague terms by indicating that a “substantial and continuing” change is one in which the monthly child support amount goes up or down by 10 percent or more. For example, if the monthly child support amount was $500, and the new amount, after all relevant factors are plugged into the calculation, is $551, a modification can be had. However, if the new factors lead to a new figure of $549, there will be no modification. Court’s must strictly apply this standard, barring special (and rare) grounds for deviation from the child support guidelines.
As indicated in prior postings, child support is essentially determined by a few various factors, those being primarily income, number of children, number of overnight visits per year for the non-custodial parent, day care, and health insurance. When a modification is sought, it is generally going to be based on a change in one or more of these factors, which leads to the requisite 10 percent or more change in the prior monthly amount. Over time, people change jobs. People lose jobs. Wages go up. People finish school and obtain new, higher paying careers. Parenting time changes. One child out of three may turn 19, thereby no longer being a factor in the child support equation. Kids grow older and no longer need that $500 to $1000 per month in day care, or after school care, they needed when they were young. These are the general types of changes which give rise to a request for modification of child support.
Conversely, there are common changes which people wrongly presume may lead to a modification. Those can include remarriage, of either party. People often mistakenly believe that if they just quit their job, child support will automatically be modified. Another common misperception is that just because a party has another child in a new relationship, he or she should be automatically entitled to a modification of his or her support. It is important for persons seeking a modification to thoroughly assess the situation to make sure a valid reason for such exists.
Pursuant to C.R.S. 14-10-122, a modification of child support will generally be retroactive back to the date of the filing of a motion. Therefore, presuming there are no impediments to filing, such as having to mediate first, one should file his or her motion when he or she is sure that grounds to do so exist. In most instances, a court will enter the modification back to the date of filing. For example, the prior monthly amount is $500 per month and the motion is filed April. The new amount established at a hearing in December is $300. Therefore, the payor potentially overpaid support to the tune of $200 per month for an 8 month period. In these instances, most courts will enter the new amount retroactively, and will order that the $1600 over payment be paid off in 1/24 installments, to be reduced from the new monthly child support payment. This retroactivity works both ways. There could have just as easily been an under payment for that 8 month period, thereby leading to an arrearage to be added on in 1/24 increments to the new monthly child support amount. Statute does give the court discretion to not apply the new amount retroactively, if it believes a financial “hardship” would exist by doing so. It is very rare for a court to invoke the “hardship” provision.
The other instance in which retroactivity can occur does not relate to the timing of the filing of a motion to modify, but rather to an agreed upon change in residential custody of one, or more, of the children. Pursaunt to C.R.S. 14-10-122(5), modifications can be retroactive to such an instance. Though we believe it is preferable to seek that modification shortly after the change in custody, people sometimes wait for months, or years, before they go back to seek that change.
As with the initial order establishing child support in your Colorado divorce or custody, the C.R.S. 14-10-115 child support guidelines will be used. Thus, a new child support worksheet will be run, with all relevant factors plugged in. Starting in 2008, statute changed to allow for the inclusion of new children of either party, not of the relationship or case in question, as a means of reducing income for calculation purposes. However, the adjustment to income based on new children cannot be used if it lowers the current ordered monthly amount. Though this seems somewhat unfair to payors, and advantageous to recipients, it is what it is. Prior to 2008, after born children were not a factor in modifications.
Once the course of action in terms of seeking a modification is determined, a motion to modify child support, setting forth general grounds will need to be drafted, filed, and served (via mail) upon the other party. There will be a mandatory filing fee of $105 (I think) that must be paid at the time of filing. The key to seeking a modification, whether to increase or decrease support, is being sure ahead of time that when the know factors are plugged in, they generate the 10 percent or more change. If not, all efforts, and money spent, will be for naught.
Courts, and the law, fortunately recongnize that people change, children change, and jobs change. Your divorce or custody lawyer can tell you whether those changes can help you in a child support setting. The last bit of information I will leave the reader with is to make sure any changes to child support, if agreed upon, are in writing. Preferably, this will be a stipulation filed with the court. If unwilling go to those lengths, at least get some sort of agreement in writing (and make sure you save a copy, should the other side deny, down the road, that the agreement exists.) Some judges, or enforcement agencies, may not honor that agreement if it is not filed with the court, so be careful and diligent with getting agreed upon modifications recorded properly.