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.