As July 1 soon approaches, it’s that time of year again when revisions to Colorado statutes often come into effect. Family law statutes related to divorce, child custody, and child support are no exception to this phenomenon. While things do not generally change too radically, even simple, nuanced changes can have an impact on family law cases. In this blog post, I will discuss changes to the primary Colorado child support statute, C.R.S. 14-10-115, which go into effect in 2019. Interestingly, the 2019 version of statute also references changes which will go into effect in 2020.
The first somewhat significant change ties into you children and imputation of income to their caregivers. Pursuant to C.R.S. 14-10-115, a child support court has the ability to assign or “impute” income to a parent based on their earning potential. Imputation can be requested when one parent is voluntarily unemployed or under-employed. For years, in recognition of the involved nature of raising young children, Colorado statute has indicated that a court cannot impute income to a parent “who is caring for a child under the age of thirty months for whom the parents owe a joint legal responsibility…” The 2019 changes now make that age 24 months. The Colorado legislature, in making this change, likely formulated the belief that today’s society is filled with two income households, with both parents working. With that comes children becoming accustomed to day care or preschool at an earlier age than they may have in the past. Right or wrong, the change is here.
Those parents facing a new child support obligation will be jumping for joy at the notion of being able to have at least some income imputed to the other parent at an earlier age. Conversely, those parents who are the ones tasked with primarily caring for the children will now be forced to make the decision much sooner as to whether to go to work or have income imputed to them. In cases in which that imputation would be minimum wage, the impact on the bottom line child support amount may not be that great. However, when that stay at home parent had a career or professional degree, he or she can expect their child support to potentially be impacted sooner. Thus, while some parents will be happy with this change, others will not.
The second 2019 change to C.R.S. 14-10-115 also relates to income. While courts have been able to impute income for years, they have largely been guided by case law in making determinations as to underemployment or unemployment. Now courts have some statutory guidance enumerated in Subsection (b.5)(II), which sets forth a specific list of factors the court must look at, including the parent’s assets, residence, employment and earning history, job skills, educational attainment, literacy, age, health, criminal record, other employment barriers, record of seeking work, the local job market, the availability of employers hiring in the community, without changing existing law regarding the burden of proof, and other relevant background factors in the case. While attorneys have found it relevant to present some or all of these factors when dealing with child support cases, they are now codified, requiring courts to make findings as to them.
At risk of bashing my own profession, it is safe to say that the more statutory factors listed, the more attorneys (or parties) will have to argue over. It will be interesting to see, over time, how the new enumerated factors compete in any given case and which ones a court might give more weight to over others. Only time will tell.
Expected Changes in 2020
The changes to the voluntarily unemployment/underemployment section are the primary 2019 changes. The only other 2019 change requires parties filing a verified entry of support judgment (a method by which to enforce child support orders) to send such to all parties. That being said, the legislature has preemptively enacted changes to go into effect in 2020, which will be discussed further below.
The 2019 changes are immediate and affect all child support proceedings. Specifically, the law states that it “shall apply to all child support obligations, established or modified, as a part of any proceeding…regardless of when filed” (C.R.S. 14-10-115(1)(c)). In other words, if you filed a divorce case two months ago, the current child support law, including all recent changes, affect your case (new law, not old law applies). This could cause a multitude of difficulties for individuals facing potential underemployment claims. For example, if you were not working at the time your case was filed because you were caring for a child twenty-five months of age, you would not have been considered voluntarily unemployed at the time the case was filed; but, due to recent statutory changes, you now could be considered voluntarily unemployed. As the changes are very recent, it is yet to be seen how judges will take this into consideration, if at all.
Adjustments to Gross Income
Beyond the 2019 changes to the child support law, there are additional changes coming July 1, 2020. One such change was to amend the description of adjustments to gross income, including the descriptions of the low income adjustments. Most notably, the minimum monthly amount of child support, when the paying party’s monthly adjusted gross income was less than $1,100, was $50. Starting July 1, 2020, when the paying party’s monthly adjusted gross income is less than $650, the minimum amount of child support is only $10 per month. Starting July 1, 2020, the table of child support amounts will also be adjusted.
How Child Support Will be Calculated
Additionally, starting July 1, 2020, the child support law codifies child support cases law regarding how support is calculated when there are two or more children subject to the child support calculation but each child has a different number of overnights with each parent. Prior to this case, there was case law that explained how overnight parenting time should be calculated, but it was not clearly laid out in the law. Starting July 1, 2020, the law will clarify the way to calculate the number of overnights. Specifically, you will add together the number of overnights for each child, then divide that number by the number of children included on the worksheet. For example, if a parent has 104 scheduled overnights per year with two out of the three children and 182 scheduled overnights per year with the other child, you would add up all the overnights (104+104+182) and divide by 3 to arrive at the number of overnights to use on the worksheet. For this scenario, you would then run a child support worksheet for three children with the parent having the average,130, scheduled overnights per year.
School Fees
Furthermore, starting July 1, 2020, mandatory school fees, defined as “fees charged by a school or school district, including a charter school, for a child attending public primary or secondary school for activities that are directly related to the educational mission of the school, including but not limited to laboratory fees; book or educational material fees; school computer or automation-related fees, whether paid to the school directly or purchased by a parent; testing fees; and supply or material fees paid to the school…[but] not… uniforms, meals, or extracurricular activity fees,” will be addressed (C.R.S. 14-10-115(3)(c.5)). Currently, the child support statute only addresses payment of fees for expenses for special or private elementary or secondary schools to meet the particular educational needs of the child. However, next year, the mandatory school fees will also be divided by parents in proportion to their incomes (for example, if father earns $7,500 gross per month and mother earns $2,500 gross per month, mother will be responsible for 25% of mandatory school fees and father will be responsible for 75% of such).
Disability
Finally, starting July 1, 2020, there are changes to the disability section of the child support law. Specifically, if a noncustodial parent receives disability benefits or employer-paid retirement benefits from the federal government, the noncustodial parent shall notify the custodial parent, and child support enforcement, if they are a party to the case, within 60 days of receipt of notice of said benefits. The custodial parent must then apply for dependent benefits for the child(ren) within 60 days of receiving this notice. The ultimate conclusion, when benefits are received, will be a dollar-for-dollar reduction in child support paid. Though this scenario is not that common, it will impact some cases and is certainly worth mentioning.
Clearly the point of these statutory changes was to fill in holes (like including the payment of mandatory school fees) and to solidify prior case law (like with the calculation of overnights). However, there are still some areas of the child support statute that lack clarity that these legislative changes did not resolve. My next blog post will detail these additional areas that still need clarification. Perhaps one day they will make it onto the legislature’s radar, too.
