Recently in Child Support Category

November 5, 2014

Motion to Modify Child Support Asks for a Reduction in the Support Obligation, but Results in an Increase

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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October 17, 2014

Colorado Child Support and Self-Employed Individuals

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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March 28, 2014

COLORADO CHILD SUPPORT AND DAY CARE EXPENSES

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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December 5, 2013

COLORADO CHILD SUPPORT: 2014 CHANGES

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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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June 26, 2013

When is Child Support Terminated or Modified in Colorado?

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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January 17, 2013

When Child Support and Presumptions of Paternity Collide

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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October 28, 2012

COLORADO CHILD SUPPORT AND YOUR "DISABLED" CHILD

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As child support lawyers in Denver, the attorneys at Plog & Stein, P.C. deal with simple and intricate matters related to child support. Though most child support cases are fairly black-and-white, with incomes and other factors which lead to a child support calculation and monthly figure being apparent, there are instances in which deviations from the norm are warranted under statute. One such instance relates to children with special needs and the financial ramifications that may ensue as a result of such, and as per statute.

Specifically, C.R.S. 14-10-115, the general Colorado child support statute, sets forth two instances in which a child's disability may impact child support. One such instance relates to when the duty to pay child support terminates. The other concerns disability payments a child may receive from the Social Security Administration for his or her disability.

The general rule of thumb followed by Colorado family law attorneys is that child support, or the duty to pay such, terminates when a child reaches 19 years of age. However, there are exceptions, one of which is that child support can extend beyond that age for a child who is "disabled." Specifically, C.R.S. 14-10-115(13)(II) states that child support can continue "If the child is mentally or physically disabled, the court or the delegate child support enforcement unti may order child support, includng payments for medical expenses or insurance or both, to continue beyond the age of nineteen." However, statue does not necessarily define "disabled". In many instances, disability is readily apparent. In others, disability may not be readily seen, such as in cases of autism. Statute makes no distinction and, again, includes "mental" as well as physical. It is often the case that parents will obtain Social Security benefits for a child, which can continue after the child reaches age 19.

Most courts will take the designation of "disabled" by the Social Security Administration to be proof enough of the disability. However, some courts may take a deeper look into the factual circumstances. One can receive Social Security, yet still be able to work, function independently, go to school, etc. Each case is different from a factual standpoint and a Denver child support attorney should be able to assist in ascertaining the strengths and weaknesses of a request to extend child support beyond age 19 due to disability.

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March 30, 2012

It's Tax Time Again: What You Can Claim In Your Denver Child Support Case

Year after year, Americans wait, some with joy, some with fear, for tax season. April 15 will soon be upon us. Do you know what you can claim and what you cannot? People with Denver area child support cases, whether just child support or stemming from a divorce or custody case, have various rights that may or may not be affected in terms of what they can claim as tax deductions or exemptions, and related to what benefits they might receive. Federal law and the I.R.S. set forth certain rules and regulations that govern in child support or divorce cases regarding exemptions, deductions, and certain status designations regarding your children. Each parent going through a child support case, or other family law case involving children, should know their rights.

I will preface this posting by indicating I am a Denver divorce lawyer, not a tax attorney. My standard line to most people coming through our doors is that I will generally not give tax advice, beyond the most basic bits of information, such as the fact that periodic payments of alimony can be deducted by the payor and are considered income to the recipient. In keeping with my standard practice to not give tax advice, this posting should not be viewed as tax advice. Such is left for accountants and tax attorneys. It should be viewed as information people in a child support or divorce situation may need to further investigate as they finish up their returns.

The most common area in which we Denver child support attorneys deal with taxes relates to the right to claim the children for income tax dependency exemption purposes. Pursuant to statute, absent an agreement between the parties, the court is required to allocate the right to claim the children for income tax dependency exemption purposes in proportion to the parties' contributions to the cost of raising a child. In practice, this translastes to allocating the exemptions proportionate to income. If husband makes $50,000 per year and wife makes $100,000 per year, wife should be able to claim the child 2 out of 3 years. Though it it likely too late to get an order from the court regarding this allocation for tax year 2011, it's not to late to file a motion to get the exemptions allocated for 2012 and future years.

One caveat to this rule set forth in C.R.S. 14-10-115(12) is that the child support payor must have paid all support due and owing in the year to be claimed, or he or she will lose the right to claim any allocated exemptions for that year. I try to inform all clients of this fact when discussing the right to claim the dependency exemption whether payor or payee. Both need to know.

For the non-custodial parent to effectuate the claiming of the exemption, he or she will need the other parent to fill out IRS Form 8332, which lets the IRS know that the custodial parent is giving up the right for the specific year in question. With the Form 8332, other tax benefits can also be claimed, such as the Child Tax Credit, which can potentailly lead to up to a $1000 windfall, depending upon one's income.

So as to avoid confusion, and to make sure you are able to claim that which the law allows, it is important to make sure your child support orders or agreements contain appropriate language. If this is not done when final orders are initially entered, statute and case law allow for the establishment of order regarding the exemptions after the fact, or certainly with each modificaton of actual child support.

In many of the Colorado child support cases we see, there are other issues beyond the claiming of the dependency exemption which may arise, such as claiming "head of household" status or any day care paid out over the year. Pursuant to IRS code, these designations or deductions can only be claimed by the custodial parent.

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November 1, 2011

MODIFICATION OF YOUR COLORADO CHILD SUPPORT ORDERS

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, Colorado 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.

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September 23, 2011

To Be or Not to Be? Income in a Colorado Child Support Case

As a divorce lawyer in Denver, one of the most common issues I see in child support battles, beyond whether someone is appropriately employed, relates to what does or does not constitute income for child support purposes. With this article, my hope is to clarify some things for my readers regarding the subject. To start, income for child support purposes is generally set forth in C.R.S. 14-10-115(5).

Subsection (5) sets forth a long list of what counts as income. I will dispense with reciting the whole list, but will set forth some of the more commonly misconstrued items, beyond what someone might earn from his or her paid job:

1. Bonuses: Bonuses do count as income. Most people with whom I speak who receive a bonus will either tell me, "it changes from year to year" or "they're ending bonuses next year...." Their hope is that the court will not include the bonus or that their words will lead me to say the bonus will not be counted as income. Comporting with my moral compass, I must be truthful. Bonuses will count in a Colorado child support case! With a fluctuating bonus, the court will generally average the last few years to arrive at a fair figure. However, if the trend has always been going up, a court will be more likely to just use the current figure. If your employer is truly ending the bonus structure, you better get a letter to that effect or be ready to have someone above you testify to that effect.

2. Rental income and rent (from a roommate): Statute specifically sets forth the notion that rent is income. If you have a roommate living in your home who pays you rent, that would count and be added to your monthly income. A court would find, and statute would support the notion, that this is money received which reduces your living expenses. Thus, it counts. The other situation we see regarding rent is one in which a party, whether in a divorce, custody, or child support case, has rental property or a prior home which they rent out. In these situations, I almost always hear that person state, "I just use the rent to pay the mortgage." If the rent truly just goes towards payment of mortgage and necessary expenses, C.R.S. 14-10-115(5)(III)(A) and (B) would support the notion that income from your rent would really only be any profit you make from the rental property after deducting those expenses. Of course, you should be ready with documentation to show where the procedes received from the tenant are going. If you have rental property that has no morgage or other expenses, you should absolutely count on the monthly payments being included as income for child support purposes.

3. Pension and retirement income: Income you receive on a regular basis from a retirement plan will generally count towards your child support income. The court will not care whether you earned that pension before the child support case. The court will not care whether that pension has been counted or divided as property as part of a divorce case (your ex's portion would count as income, too). The court will not care whether the pension was accrued before the child was even born. If you are receiving pension income, that income will count towards your monthly child support income. Even if you also have a full, or part-time, job the pension income will be included added to your income.

4. Recurring gifts: Let's say rich Uncle Wilbur gives you $10K each January as a gift. Though that money would generally be yours in divorce battle over property, the court could count Uncle Wilbur's yearly gift as income for child support calculation purposes. Using another scenario I have seen, let's say your parents give you $3000 each month to live, and it's not titled a loan. If this goes on long enough, a court may include this as income to you. Let's say instead of giving you money directly, mom and dad pay your rent, car payment, etc. on a monthly basis. A court may count that, too. I have even seen one situation in which mom and dad lived out of state, but owned a house here. They allowed the party to reside in that house and use their car, rent and payment free. The court counted the approximate value of those things as income.

5. Certain monthly business expense deductions allowed by the IRS: Income from a business is counted as child support income. When dealing with self employed parties, we Colorado divorce and custody lawyers, will almost always be forced to go through prior tax returns, profit and loss statements, etc. to assess the revenue of the business and what are legitimate expenses reducing income. The end goal is to determine whether the individual income reported by the business owner on his or her personal taxes matches up with the income of the business. It is also to determine if there is other personal income that could be used for child support. There are certain items that might be allowable business deductions or expenses for IRS purposes that might, but will not help reduce your child support income. Home office deductions are an item I will generally fight to get included as income. Car payments made by your business may be personal income. Health insurance payments paid by a business may be personal income. Even depreciation on business property, at least "accelerated depreciation", may be counted as business income for child support purposes. Just because the IRS says it's not income, does not mean Colorado child support law agrees. Additionally, people often think they can just pay personal expenses out of a business account and that those proceeds won't count as income. They are wrong, from and IRS and child support standpoint. A good child support attorney will figure it out. We have our ways.

I will saved the "...not to be" analysis of child support income for another posting. Just as I see Denver child support clients' jaws drop when I tell them something is income, I also see jaws drop when people are told something is not. I will elaborate another day. For now, take with you the understanding that each court is different and may interpret the niceties of determining income differently. Please also take to heart that income for child support purposes is potentially more than you think.

July 15, 2011

DENVER DIVORCE AND FINANCIAL DISCLOSURES

Denver family law attorneys at Plog & Stein, P.C., are well abreast of the requirements set forth by Colorado statute and the courts related to divorce. One of the most important steps required by the courts relates to financial disclosures. Most people who have had a divorce or child support case will remember the tedious part of the case related to financial disclosures, yet they may not quite understand the importance of them.

Pursuant to Colorado Rules of Civil Procedure, Rule 16.2(e)(2), the basic list of documents to be provided in a divorce or child support case is:

1. Sworn Financial Statement, which is a comprehensive document, to be drafted by you or your attorney, setting forth income, assets, debts, and monthly expenses.
2. Last 3 months pay stubs.
3. Last 3 years personal and business (if applicable) tax returns.
4. Personal and busniess financial statements (I have yet to have a private person do a personal financial statement, thus this generally only applies to people with businesses).
5. Current bank statements.
6. Current debt statements, which includes credit card or other debt statements.
7. Current investment statements.
8. Current retirement account statements.
9. Documents related to real estate.
10. Documents regarding any insurance policies.
11. Documents regarding any vehicles.
12. Documents regarding day care expenses.
13. Documents regarding employment benefits.

These disclosures are generally required to be exchanged by the parties by the initial conference date in your divorce case or custody case, which generally will occur within 40 days of the case being filed, or as set forth by the court in a child support case. As you can see, the rules provide for complete financial disclosure. The purpose of this rule is to ensure that both sides have a clear picture of the other's financial situation for purposes of settlement, or so that each side and the court has a clear picture for purposes of a contested hearing.

As divorce deals with not only child support, but the division of assets and debts, it is important for there to be financial transparency between the parties. It is not uncommon for the attorneys at Plog & Stein to have cases in which one party or the other has been the one who has primarily dealt with the income, control of the accounts, payment of the bills, etc. Thus, the other party may have almost no knowledge as to expenses, income, or the holdings of the marital estate. In the olden days, it was often the wife who was in the dark. Today, husbands are sometimes the ones lacking financial knowledge. Our attorney often hear that the one who controls the finances is a controlling and secretive person related to such. Courts are keenly aware of the games that can go on with finances and the fact that one person may be completely in the dark. As such, most Denver area divorce courts will not sign off on the decree, thereby granting the divorce, until they know that both sides have completed their financial disclosures.

As relates to child support, whether in a child support case or a custody case, the disclosures also matter. Though assets are not being divided, attorneys may often need to see the assets and debts of the other party for purposes of trying to ascertain if there is hidden income or additional income that would also go into a child support calculation. The list of disclosures in these cases may not matter when both people have regular jobs. In such cases, the attorneys may really only need to see pay stubs, sworn financial statements, tax returns, day care documents, and proof of health insurance. The remainder of the list becomes important in instances in which one party is self employed, underemployed, or claims to be unemployed, yet magically seems to financially survive with no visible source of income. In essence, your family law attorney is trained to figure out monthly income for child support purposes from looking at assets and expenses as well. Thus, those things may matter.

Beyond courts holding up hearings or final orders, or getting upset with parties who fail to make their financial disclosures, there are broader ramifications of not doing financial disclosures properly and/or related to the timing of getting them done. We have seen both sides of divorce cases in which the parties arrive at an agreement, get that agreement put into writing, sign on the dotted line without having exchanged their financial disclosures, and submit the agreement to the court. Of course, this is done without attorneys involved. The problems arise when one party wakes up and says, "hey, wait a minute, this agreement is wholly unfair." If financial disclosures were not done properly and the court determines that the agreement is, in fact, unfair or unconscionable, the court can toss the entire agreement and make the parties start over again. I have litigated this issue as a Denver divorce lawyer from both sides of the coin. Parties to a divorce need to recognize that, technically, once the final divorce agreement (called Separation Agreement) is signed, the statutory presumption is that it is a binding contract as to property, debt, and potentially alimony. Therefore, never sign a final divorce agreement until you know you have full financial disclosures from the other side. Also, never presume you will bind the other side to that agreement if you did not make full financial disclosure. Great cost can arise from litigating these types of matters.

Finally, should one side fail to make full financial disclosure, the Rule also allows for a continuing jurisdiction on the part of the court for 5 years after the divorce decree enters, over any property that is discovered later, meaning it was not previously disclosed. Believe it or not, people do actually try, once in a while, to conceal assets. Now you know what you need to provide and receive from the other party. Your Denver family law attorney can help you understand those disclosures and how to use them to help you in your divorce or child support case.

July 7, 2011

COLORADO CHILD SUPPORT IS MORE THAN JUST CHILD SUPPORT

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Most of the custody cases, or divorces with children, handled by the Denver area family law attorneys at Plog & Stein, P.C. include the issue of child support. When most people think of child support, they picture a monthly dollar amount that is paid, such as $500 dollars, and nothing more. In reality, there is much more that goes into any child support agreement or order.

Colorado statutory section, C.R.S. 14-10-115 sets forth the basic provisions for arriving at that monthly child support number. It also sets forth other rules and duties of financial importance that any party to a custody case, or divorce case with children, should be aware of. Those other provisions are as follows:

1. Pursuant to C.R.S. 14-10-115, in addition to basic child support, the parties are also required to split medical or similar expenses not covered by insurance proportionate to their incomes. Specifically, statute calls these "extraordinary expenses" and calls for the splitting of any such expenses after the first $250 per year per child paid out of pocket. I am not aware of case law indicating who pays that first $250, though most Denver area family law attorneys seem to interpret the rule as indicating the child support recipient bears that initial $250 expense. Everything after should be divided. Often times, people presume these expenses are to be split equally. This can include uninformed attorneys. This works out great for the person with the higher income, but not so great for the other person.

2. C.R.S. 14-10-115 also makes provisions for how the children should be claimed for income tax dependency exemption purposes. Specifically, statute indicates that the right to claim the child should be allocated proportionate to the parties' individual financial contributions to the child. Again, this boils down to being divided proportionate to income. For example, if wife makes $150K per year and husband makes $50K per year and there is 1 child, wife should be entitled to claim the income tax dependency exemption for the child 3 out of 4 years. As with medical expenses, people often have false assumptions about how to divide the exemptions. The two common mistakes our divorce and custody attorneys see are people either presuming that the primary custodian gets to claim the kids or that the right to claim them is automatically split equally. As with medical expenses, these false assumptions can leave one party without full benefit of the law. A signficant statutory factor all parties to a child support case should keep in mind is that if all court ordered child support due and owing in the year in which the payor is entitled to claim the exemption is not paid by the end of the year, the payor loses the right to claim the exemption. Payors beware. Recipients, be ready to inform the payor that he or she lost the right, bright and early on January 1.

3. Statute also authorizes the splitting of transportation costs related to transporting children for parenting time. Our attorneys rarely see this issue when we are talking about visitation schedules between parties in the Denver metro area. However, when one parent lives out of town or out of state, the cost of transporting the child for parenting time can be split proportionate to income and as an additional expense to the monthly child support amount. This can include the cost of a parent having to travel with a child for the parenting time, such as a parent's plane ticket, if the child is under 12.

4. The last topic for discussion in this child support article relates to the cost of extras, such as clothing, school expenses, and other necessities. Generally, child support is presumed to cover such costs. However, in a child support worksheet B situation, in which the payor has 93 overnights per year or more of visitation, or what the child support statute would refer to as a "shared" or "split" physical care situation, the basic monthly child support amount owed starts to go down. Because of such, it is presumed that the payor, in addition to the monthly child support amount, will also be kicking in on clothes, required school expenses, etc. This does not mean that the payor has to pay the other party his or her share of a pair of shoes for Billy or of a dress for Sally. It does mean that that person is also presumed to be buying Billy and Sally some shoes or dresses as well. If not, court intervention can be sought.

Child support is more than child support. Your Denver divorce or child support attorney will know this. Those at Plog & Stein certainly do. Now you will too.

June 16, 2011

ENFORCING A COLORADO CHILD SUPPORT ORDER

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As a Denver area family law attorney, almost every divorce (with children) or custody case I have handled includes the issue of child support. As indicated in prior blog posts, child support is the statutorily dictated amount that the court deems appropriate for one parent to pay the other for support of a child. Also, as indicated previously, child support law generally derives from statutory section C.R.S. 14-10-115.

While surfing the internet this evening, I came across an article involving a former NBA player with multiple kids who was grossly behind on his child support. After reading, I pondered whether the mothers of the children were aware of their options? Though the average person isn't owed $100,000, his or her child support still matters.

Once orders are entered, the recipient of child support is left with the expectation, and hope, that he or she will get his or her child support. When formulating a child support agreement, it is important to make sure that specifics are included. This will include specifics as to when each payment is due (a specific due date) and how the support will be specifically paid. Child support will generally be paid through one of 3 mechanisms:

1. Paid directly to the recipient by the paying party; or
2. Paid through an income assignment (sometimes referred to as a garnishment or wage assignment); or
3. Paid to the Family Support Registry, whether directly or through an income assignment.

Again, specifics as to pay date(s) and mechanism are important for purposes of preventing confusion or argument down the road. No matter how much specificity is put into an order, unfortunately problems can arise down the road, meaning people don't always pay. Fortunately, Colorado statute sets forth various remedies an attorney can pursue for collecting back child support:

1. Issuance of an income assignment, if one was not previously ordered, is one way to go. A blank objection form will need to be provided with it. This alone may not resolve the issue of back support owed, but if the payor is employed it will help ensure future payments. See 14-14-111.5

2. The filing of a verified entry of support judgment and affidavit of arrears is another remedy. Each child support payment not paid becomes a judgment, as a matter of law. No motion needs to be filed. Just filing the proper papers leads to enforceable judgment. Interest accrues on each unpaid payment at the rate of 12% per year, compounded monthly. Once judgement enters, a support garnishment (different from an income assignment) can be filed against the payor's wages to collect additional funds beyond the current child support amount. The judgment can also be used to lien property or seize funds in certain assets such as bank accounts. See 14-14-105

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April 10, 2011

Custody Meets Child Support: The Interplay Of The Two In Colorado Family Law

1212787_toy_boy.jpg1331234_money_01.jpgDenver clients is "How does custody affect child support?" Many people ask this because they have talked to family members or friends who have been through a divorce, or others they find knowledged on the subject. Often they have part of the story or certain misconceptions based upon the war stories of others. As such, I will attempt to enlighten the reader with the basics.

1. "Custody" is no longer a word used in Colorado, but rather "parental responsibility." Visitation is no longer used either, but rather "parenting time." It is quite common for the child support payer to be accused of wanting more parenting time to lower his or her child support. It is also quite common for the child support recipient to be accused of wanting the non-custodial parent to have less parenting time so as to keep child support higher.

2. The reality is that parenting time can affect child support. Pursuant to the Colorado child support statute, C.R.S.14-10-115, child support will be calculated under two different scenarios, a "Worksheet A" or a "Worksheet B." Worksheet A means the non-custodial parent has 92 or less overnights per year with the child. In such instances, the parenting time has no bearing on the amount of child support he or she will pay. Worksheet B means the non-custodial parent has 93 overnights or more per year with the child. In this instance, child support may start to go down incrementally. The closer a child support payer gets to 182 overnights per year (50/50 time), the lower his or her child support will go.

3. People often presume that 50/50 parenting time, or truly joint physical custody, means no one owes child support. What they are missing is the fact that child support is not just based on time. Let's say a Colorado woman going through a divorce makes $100K per year and her husband makes $50K per year. In such an instance, were that woman to come see me at the office of Plog & Stein, I would have no choice but to inform her that based on the income difference between her and her husband she would likely be paying child support. The point is that there is more to just visitation being the primary factor, and one should never presume that equal time means no child support.

4. A silly question often asked is "if he or she is not paying support, can I withhold visitation?" My answer is a big fat NO. Child support and parenting time do not go hand in hand. If the custodial parent withholds visitation due to non-payment of child support, he or she opens himself or herself up to great risk. Courts equate child support and parenting time as separate issues, and will generally hand the person withholding the visitation his or her rear end on a silver platter. Part of being the custodial parent is the ability to foster and value the relationship between the child and the non-custodial parent, as set forth in C.R.S.14-10-124. If child support is not getting paid, there are remedies, such as contempt of court pursuant to Rule 107 of the Colorado Rules of Civil Procedure.

5. Finally, family law judges, family law attorneys, custody experts, and a decent portion of people with divorce, custody or child support cases know full well about what I call the Battle for 93 Overnights. Though attorneys deny it, they fight for it. Though parties say they don't care, they do. I have even seen a judge in an unnamed county in the western part of the metro area (near a brewery that rhymes with "Doors") make sure he ordered exactly 92.5 overnights for the non-custodial parent to keep him from getting that magical 93 overnights.

Finances and the ability to survive matter to everyone, whether paying or receiving child support. Try to keep child support and parenting time/custody separated in your mind. If you are asking for more time with your kids, make sure it's for the kids, not the money. If your ex wants more time and the kids are safe and happy, don't withhold it so you get more money. Though child support and money interplay and intersect, kids come first, money comes (or goes) second.

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March 1, 2011

Colorado Child Support 101

What is Child Support? As a Denver area divorce/custody attorney, allow me to answer that question. Child Support is the statutorily determined amount of money a person may pay for the support of his or her child. The amount is determined based on a number of factors, which are plugged into a formula stemming from Colorado Revised Statutes. Child Support is generally calculated using this statutory formula. The general information that goes into a Child Support calculation is: a) income of each party, b) number of children, c) number of overnights the non-custodial parent has if that number is more than 93 overnights per year, d) monthly health insurance cost for the child(ren), and e) monthly day care cost, if applicable.

The above stated five factors are all plugged into the formula (attorneys use special software, but there are also free software tools for people to use on the internet) and a number is spit out. In most instances, the court or judge will follow the C.R.S.14-10-115 statutory guidelines. A judge might deviate from guideline amounts in odd circumstances or if the parties agree to such. We will write more about Child Support in upcoming postings. For now, I will state some frequently asked questions, followed by "yes" or "no" answers:

1. Can I just quit my job to avoid paying child support? No. In such an instance, the court can use your income from the job you quit for calculation purposes.

2. Can I ask for an accounting of how my ex spends the money? No. Courts are not going to allow or require this and presume child support paid goes into the recipient's general financial fund, to be used as deemed appropriate.

3. My ex has a BMW and a million dollar house, can I get more child support? No. Non-income producing assets have no bearing on child support.

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