By: Stephen J. Plog
Over the last several decades, divorce rates have increase significantly from those in the 1970’s or 80’s. As divorce has become a more common life event, including in Colorado, social phenomena have also changed. Going back to childhood, we all remember the TV staple, classic, the Brady Bunch. Mike brought “three boys of his own” to the equation. Carol brought “three very lovely girls.” Perhaps the first prime time “blended family” materialized. Of course, the Brady’s were television and we all live, operate, and deal with the law in the real world. Often times, with the blended family, comes a new child, or children. Mike, Carol, nor anyone else other than those involved in a family law case likely ever stopped to ask about the ramifications of the blended family and new children as relates to the issue of Denver child support.
Having practiced as a Denver area child support attorney for many years, I have fielded various assumptive questions from clients related to child support and changed life situations. Two of the most common are whether a new spouse’s income gets included in a child support calculation, which it does not, and whether people can include or derive a benefit from new children. With the second question, the answer has changed multiple times. Starting January 1, 2017, it will change again.
Before delving into legal specifics, I should reminder readers regarding the basis of child support. As has been set forth in various, prior posts, Colorado child support is calculated via a statutory formula and support table set forth in C.R.S. 14-10-115. There are various bits of data put into the formula, the main ones being incomes, number of children, and overnights a child spends with each parent. In addition to these core data entries, there are additional figures that can affect a bottom line child support amount. In the software used by Denver child support attorneys to calculate. This entry, in current form, allows for a reduction in income for a party if he or she is “legally responsible” for a child not of the relationship. Reduced income affects the monthly amount of support paid.
Prior to 2008, there was a clear dividing line in statute and legal norms which indicated that after-born children, born after the children subject of a divorce, custody, or child support case, were not factored in or had no affect on child support calculations. Prior born children could be factored in, whether reducing income by the actual amount of court ordered child support for those children or by reducing income based on having legal responsibility for them.
This changed in 2008, with the Colorado state legislature amended C.R.S. 14-10-115, specifically subsection (6)(b)(I) and (II). Pursuant to subsection (6)(b)(I), which is still currently in effect, a party may be entitled to credit for the other children, whether after-born or not, which comes in the form of a mathematical, percentage reduction in their income used for calculating child support based on the number of “other children.” The less income used for a party can have an impact on the bottom line child support figure. In theory, if the payer’s income gets reduced due to having other children, child support can go down. Conversely, if a recipient’s income is reduced due to having other children, child support can go up.
However, current statute has a qualifier set forth in subsection (6)(b)(II), which specifically states that the adjustment to income for other children cannot be used when including the child of another relationship would lower an already existing child support amount. Therefore, when initially establishing an original child support order, both parties will derive the benefits of subsection (I) and any additional children can be used. From there, there is a divergence in terms of who can derive a benefit or credit for additional children. If child support is being modified and the recipient has new, additional children, he or she can always benefit from the income reduction afforded under subsection (I). However, the payor will only get a benefit in instances in which the child support is going to go up when modified. For example, if child support is originally established at $500 per month, payee seeks to modify based on payor making more money, and the support guidelines indicate that payor should pay $1000 per month, payor can use his or her new children to lower the income used, so long as including those children does not render the monthly child support amount to be lower than the original $500 per month.
Using the same scenario above, let’s say the payor loses his or her job and wants to reduce child support. He or she cannot use any additional children to lower income when the child support would be going down. In this scenario, the payee could derive benefit from new children, but the payor is precluded. As a Denver child support attorney, I have to step back and ponder the logic and fairness of the differing standards or positions set forth in subsection (II). Both parties in the equation have financial needs and potential new obligations based on additional children, yet only one party is able to gain financial relief in the child support calculation because of such.
At this time, the law is the law. Though this intricacy may pale in comparison to other aspects of child support, or Colorado family law as a whole, family law attorneys know it’s always important to keep in mind that when it comes to litigating cases, details and nuances to statute matter. The more you know, the better decisions you can make in your child support case.
Commencing in January 2017, the seemingly unfair provisions of subsection (II), which clearly treat payor and recipient differently, will be gone. Once the new statue takes effect, both parties will be treated equally and entitled to credit for other children. In Part 2 of this post, I will discuss the new, 2017 version, including specifies and how they will affect child support calculation and litigation.