Articles Posted in Child Support

hands-1402625-m-2In Colorado, both parents must contribute to child support, though the amount paid and who pays it is based on the parents’ income and time spent with the child. The parent that cares for the children less than 50% of the time usually must pay child support to the other parent for the benefit of the children. Unfortunately, there are many cases when a parent ordered to pay child support fails to comply, leaving the burden of enforcing the child support order to the other parent. This can lead to bitterness and hostility between parents who may have other issues between them as well. Like other court orders, child support orders can be enforced.

Child support enforcement remedies include court actions and administrative actions, but you can only enforce a child support agreement that is part of a court order. For example, if you have informally separated from your spouse and verbally agreed that he will pay financial support to the children, you cannot enforce that. Assuming that you have a court order, the most common enforcement method is probably filing a motion for contempt with the court that ordered your ex-spouse to pay child support.

Contempt can be punitive or remedial. Punitive contempt asks the judge to sentence the other parent to jail or impose a fine regardless of whether the parent catches up on overdue payments. You will have to prove beyond a reasonable doubt that the other parent could have paid child support, but refused to do so, and so this is best reserved for truly egregious cases. When you ask for remedial contempt, you ask the judge to place the parent in jail unless he or she pays some or all of the child support that’s owed. This is a way of forcing the other parent to pay.

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Sao_Paulo_Stock_Exchange.jpgIf the parties to a divorce have one or more minor children, Colorado law generally requires their divorce decree or orders to include provisions for the payment of child support. If they cannot agree on child support terms, a judge must decide based on a series of factors set forth in the Colorado Revised Statutes. From time to time, disputes arise over whether certain types of income, particularly investment income, should be included in child support calculations. While the general rule is that investment income should be included in child support calculations, the Colorado Supreme Court has identified some situations in which this may not be the case.

“Investment income,” broadly speaking, refers to income received from something other than employment. Most investment income is “passive,” as opposed to wages, salaries, commissions, and other forms of “active” income. The legal definition of “gross income” for child support purposes, found in C.R.S. 14-10-115(5)(a), includes many forms of income ordinarily considered investment income, such as interest, trust income, annuities, royalty payments, capital gains, dividends, and certain types of pension or retirement payments.

Courts must take these types of investment income into account when determining child support. The Colorado Supreme Court reversed a lower court order in In re Marriage of Klein, 671 P.2d 1345 (Col. 1983), finding that the court failed to consider the father’s investment income when calculating child support. The mother had considerably fewer resources available to her than the father, and although the father’s “active” income was relatively low, he had regular income from passive sources.
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As experienced family law attorneys in the Denver area, we have seen a multitude of situations over the years in divorce, custody and child support cases. Having represented more clients than easily countable, we have observed certain scenarios arise, now and then, for which there is no specific statutory remedy or answer. In other words, we sometimes find ourselves pondering or debating why the Colorado Legislature, with multiple members and input from the domestic relations bar, could leave certain aspects of statute vague or with no specific rule? As we see these types of issue arise over and over, so should other attorneys. Regardless, the gaps go unchanged. Below are some of those gaps in statute, related to child support, which are in need of bridging through additional language.

1. C.R.S. 14-10-122 is the statutory section dealing with modification of child support. C.R.S. 14-10-122 indicates that a modification of child support can be applied retroactively to either the date a motion is filed, or when an agreed upon change in custody of a child occurs. The second scenario will still ultimately require a motion. The rationale in this retroactivity is that it can take some time for parties to actually obtain a court hearing and get a change to child support change formally effectuated or ruled upon. Despite these protections afforded to the parties, there are still instances in which statute could provide more guidance. One relates to stopping child support upon that change in custody, whether agreed upon or not. We have seen cases in which the child goes from mom to dad, or vice versa, and contrary to the terms of the current custody orders . In some cases, one party may take on the custodial obligations for the child, but continues to be saddled with paying the child support obligation until such time as the matter goes to court, if at all. Realistically, as simple rule indicating that when custody changes, regardless of agreed upon or not, the duty to pay child support automatically abates until such time as a hearing occurs. With this type of a black and white rule, the party taking custody of the child is not burdened with technically having to pay the other party until such time as a court hearing, which can take months. As a matter of fairness and financial practicality, the party obtaining custody shouldn’t have to go to court for other proceedings to get his or her Colorado child support stopped. Of course this is a separate issue from whether he or she wants to receive child support. Simple language, such as “when a change in primary residential care occurs, regardless of the reason, and regardless of whether the new custodial parent seeks a modification, the obligation to pay child support shall automatically be abated until such time as a hearing is held.” This language would not eliminate the potential for factual he-said/she-said arguments. It would, however, provide immediate relief.
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hands-1402625-m.jpgChild support in Colorado is calculated according to the Colorado Child Support Guideline found at C.R.S. 14-10-115, revised in January 2014. In Denver and the surrounding areas, divorced parents must meet their child support obligations until the child is emancipated. This happens when the child graduates from high school, turns 19, joins the military, marries, becomes self-sufficient, or dies, whichever is earliest. Child support orders entered after July 1, 1997 terminate automatically when the youngest child reaches 19, unless the court has ordered otherwise. Sometimes the court orders child support to extend after this point, such as when a child is physically or mentally disabled and incapable of supporting himself or herself.

What happens if a parent fails to pay child support and the children are out of the home? Child support arrearages–child support that is still owed–must be paid even after the kids move out. The court must modify a child support order if the support is to be reduced for any reason. This means, for example, that if you owe child support for two children, and one child is emancipated while the other is not, you must still pay the total amount of child support until you obtain a modification from the court.

Generally, if you think there has been a substantial change in circumstances that warrants a change in child support, you should consult an Arapahoe County family law attorney to help you request a modification, rather than simply allowing arrearages to accumulate. A parent who is not paid child support for many years doesn’t waive the right to bring a claim for arrearages by delaying in seeking it.
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Denver_skyline.jpgA motion to modify child support did not go the way a father and ex-husband probably hoped. The father sought to reduce his monthly child support obligation, but the trial court raised it instead. The Colorado Court of Appeals denied the father’s appeal, holding in part that alleged misconduct by the wife did not entitle the father to modification of the child support amount. In re the Marriage of Roddy and Morelli, No. 13CA0632, slip op. (Col. App., Jul. 31, 2014).

The parties were divorced in 2003. The decree of dissolution stated that their minor child would reside primarily with the wife, and that the father would pay $3,000 per month in child support. He filed a motion to modify child support about eight years later, seeking a reduction in the monthly amount based on an increase in parenting time and a decrease in income. Colorado law generally allows modifications to child support if a movant can show “changed circumstances that are substantial and continuing.” C.R.S. 14-10-122(1)(a). After a three-day hearing, however, the court increased the father’s monthly child support obligation to $4,604.

The father filed a motion for post-trial relief, alleging that the wife withheld financial records, and that this entitled him to relief under the Colorado Rules of Civil Procedure’s disclosure requirements. C.R.C.P. 16.2(e)(10). During the modification hearing, the trial court had found the wife’s 2011 tax return to be “the only remotely credible source of information” about her income. Roddy at 1-2. The trial court denied the post-trial motion, though, holding that the wife’s income was not relevant to the issue of modification regardless of any alleged misconduct. The father appealed both the child support order and the post-trial order.
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Pursuant to C.R.S. 14-10-115, the statutory section regarding establishment of Colorado child support, the primary financial factor leading to a calculation of support is a litigant’s incomes. As discussed in prior postings, there are basic figures, such as income, number of children, and number of overnight visits per year the payor has with the children, that go into generation of a monthly child support amount. Child support is generally easily calculated when there are two people to the equation, both of whom have traditional jobs with readily discernable income. However, when one person is a business owner, or self employed, the analysis of what income figure should be used for that person becomes more complex. Likewise, challenges can arise related to collection of child support from that self employed person. This posting will address both issues as may arise in the legal arena.

As Denver area child support attorneys, we have seen almost any scenario imaginable related to child support. The one scenario requiring perhaps the most scrutiny relates to ascertaining income for a self employed person. This task can arise not only related to the other party’s income, but also our own clients. As a starting point, C.R.S. 14-10-115(a)(1) sets forth definitions of what is or is not income for child support purposes. Subsection (D) states, “Payments received as an independent contractor for labor or services, which payments must be considered income from self-employment.” Subsection (O) states, “Any money drawn by a self-employed individual for personal use that are deducted as a business expense, which money must be considered income from self employment.” Subsection (W) states, “Income from general partnerships, limited partnerships, closely held corporations, or limited liability companies….” In essence, the funds one takes for personal use under any of these scenarios is considered income for child support calculation purposes.
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Over the course of the last few decades, it has become more common place for both mothers and fathers, whether married or just parents of a child or children, to work. In fact, Colorado statute related to child support presupposes that both parents work and creates a duty, absent an exception, for each parent to be employed full time to the best of his or her abilities. In any two-income, intact household with little children, the reality is that some sort of child care will be needed for both parties to work, unless of course they work opposite schedules and never see each other. When a family unit splits up and a divorce or custody case is filed, the need for day care doesn’t go away. Fortunately, C.R.S. 14-10-115, the main statutory section related to Colorado child support, sets forth certain provisions regarding day care expenses and how such will be paid among the parties.

C.R.S. 14-10-115(9) indicates that the cost of work related, education related, and job search related child care incurred for a child of the case shall be split among the parties proportionate to their gross incomes. Thus, if there is $1000 per month incurred for day care, and mother makes $100,000 per year and father makes $50,000 per year, statute would have mother paying approximately two-thirds of the monthly child care obligation and father paying approximately one-third. Statute does not make specific mention as to which party is paying the actual cost directly to the child care provider, nor preclude both parties from contributing directly to the provider. Likewise, statute does not necessarily indicate that the parties even have to use the same daycare. It just indicates that costs shall be split proportionate to adjusted gross incomes of the parties.

For purposes of minimize conflict related to payment of or reimbursement for child care, C.R.S. 14-10-115(9) also indicates that the child care costs incurred for any of the three endeavors shall be “added to the basic support obligation.” This is generally accomplished by adding the monthly daycare figure into the child support worksheet, or software used for calculating the monthly child support amount. The software used by Colorado family law attorneys will take the monthly child care amount, or amounts, incurred, and apportion it proportionately to the parties’ incomes listed on the child support worksheet. The actual monthly child support figure shall then go up or down according to whom is paying what amount for daycare. For example, let’s say that a monthly child support obligation of $500 exisits with mother paying father. Let’s say that no daycare has been factored in to arrive at that calculation. Due to changes in the parties’ schedules, a need for work related child care arises to the tune of $1000 per month. Using the same family set forth in the paragraph above, lets say father, making $50,000 per year, or 1/3 of the combined income, is the one who pays the actual funds to the provider. In this instance, the approximately $667 per month of the day care costs which are allocatable to mother would be added to the $500 child support figure and mother would then be required to pay approximately $1167 per month in child support. Conversely, if mother were paying the actual child care to the provider, the child support owed to father should, in theory, go down by roughly $333 per month. These are approximate figures and do not factor in various adjustments or an adjustment pursuant to statute based on the federal income tax credit for child support.
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As 2013 draws to a close, Denver area divorce and custody attorneys know that various changes are coming to Colorado statute in 2014, that relate to many aspects of family law, including statute related to child support. The general child support statute is set forth in Colorado Revised Statutes section 14-10-115. C.R.S. 14-10-115 covers the majority of topics related to the calculation of child support, specific dollar amounts owed, definitions of income, and other specifics on the subject. Commencing January 1, 2014, certain changes, some significant, will come into play which will likely affect parties with child support cases moving forward. Perhaps the most significant change relates to the restructuring in the acutal guidelines set forth in the statute in terms of what should be paid based on income levels.

Colorado child support is calculated based on a formula. The primary factors for establishing child support are the incomes of the parties, the number of children, the amount of overnight parenting time spent with the children, each year, by the non-custodial parent, day care costs, if any, and health insurance costs, if any. The numbers leading to a child support calculation are plugged into software, which then generates a monthly child support amount, based on a statutory formula. C.R.S. 14-10-115 contains a basic table setting forth the amount the legislature has deemed needed to support a child, or children, depending upon the parties’ combined monthly gross incomes. This figure is titled the “basic support obligation” and is not the actual monthly child support amount owed. Without any adjustments, which will not be discussed in this posting, the software would, in essence, divide the monthly support obligation between the parties proportionate to their incomes, with the presumption that the payor is paying his or her proportionate share to the custodial parent.

Current support obligation figures were established commencing 2008. On the low end of the table or chart, parties with a combined monthly gross income of $850 would have a combined support obligation of $184 for one child. On the high end of the current table, the maximum combined monthly income set forth is $20,000 per month and the combined support obligation for one child would be $1858. The 2014 changes not only increase or decrease the combined support obligation, depending on the combined income and number of children, but also raises the upper most limit of the guideline combined income amount to $30,000 per month between the parties. This is significant in that some courts in the Denver metropolitan area have taken a position that they are not generally willing to exceed the $20,000 maximum guideline income amount for calculating child support. Thus, despite case law on the subject, there has been a gray area as relates to calculating child support for families making over $240,000 per year. That figure will now change to $360,000 per year. As such, persons with significant income over $240,000 will now lose any gray area as to what child support should be, up to the new $360,000 threshold. This change makes sense in that some sort of standard should be in place which limits potential litigation over what child support amount is fair for higher earning families. Perhaps such a change was long overdue.
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1391967_baby_hands-1.jpgChild support is considered a child’s right in Colorado. In every divorce or custody case involving children in Colorado, the court will determine whether one parents owes the other child support. Usually child support does not continue indefinitely, of course; it terminates upon a child’s emancipation.

“Emancipation” in Colorado occurs when a child turns 19, marries, joins the military, graduates from high school and/or becomes self-sufficient, or death–whichever comes first. These are considered the moments when a child becomes an adult.

Until child support is terminated, a mathematical formula in Colorado’s child support guidelines are used to calculate the appropriate amounts. While it is possible to calculate the amount yourself using worksheets, an attorney can help you figure out whether you can ask the court for a deviation from the formula or not. For example, an attorney can argue to the court on your behalf if you need to ask for more child support because of large medical expenses or private school tuition. Support is calculated using both parents’ incomes and taking into account how much time each parent spends with the kids. The guidelines do not apply, however, in the case of very low or very high-income parents.
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A person paying child support in Colorado is generally the child’s or children’s biological mother or father. Occasionally, it is someone who has assumed all the responsibilities and rights of a parent through adoption or signing an ‘Acknowledgment of Paternity” form. All create an obligation to pay child support if the couple either divorces or one files to receive government-issued benefits. Men who have established a parental relationship by signing an Acknowledgment of Paternity, can find themselves in complicated situations either establishing their own biological tie to a child when the mother is married to another man, or signing an Acknowledgment of Paternity and then discovering the child is not his.

Denver area Family Law Attorneys, Plog & Stein, have witnessed a lot of unique family situations in the pursuit of advocacy and resolution. No matter how odd or complicated you feel your personal situation is, one of our experienced attorneys is here to help you sort it out.

The Colorado Court of Appeals assessed a specific legal question that arose from a child support case where the lower court determined a man who signed the Acknowledgment of Paternity form was the presumptive father and not the wife’s ex-husband who fathered the child while they were still married. The mother was dating the man who later signed the Acknowledgment of Paternity while she was married. She conceived the child during her marriage and then divorced while she was still pregnant with no discussion or acknowledgment of her pregnancy by her or her husband in any of the paperwork or proceedings. Her boyfriend signed an Acknowledgment of Paternity and had his name placed on the birth certificate for the child after they moved in together, even though there had been tests that revealed the child wasn’t his.

262875_5749.jpgThe mother and the boyfriend ended their relationship after several years of the boyfriend acting as the child’s father. The boyfriend sought parental responsibilities for the child, and was granted parenting time. The mother later sought benefits from the state of Colorado and the local enforcement unit, based on information she submitted, pursued her ex-husband for child support. A DNA test established a 99.99% probability that he was the father. The enforcement unit also discovered that the boyfriend signed the Acknowledgment of Paternity form and asked the court to help determine who was the child’s legal father.

The Court of Appeals ultimately upheld the lower court’s decision granting the boyfriend parental rights and child support responsibility. The search for a father to assume Colorado child support obligations led to the court choosing which competing presumption of paternity outweighed the other. You had the ex-husband who fathered the child during the marriage and was shown by genetic testing to be the biological father, and the boyfriend who voluntarily assumed responsibility and had formed an actual relationship with the child. This was all seriously considered by both the lower and appellate court because the child had a greater stake in the outcome beyond the child support determination. Legal presumptions are not, by themselves, considered to be conclusive. They were meant to be evaluated to determine what is in the child’s best interest.
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