Child Support and Retroactivity

By: Stephen J. Plog

Family law attorneys deal with a wide array of issues, both financial and child related. One of the three main areas of family law, often subsumed into a divorce or custody case, is child support. In Colorado, establishment of child support is governed by Colorado Revised Statutes (C.R.S.) 14-10-115 and modifications of child support are done pursuant to C.R.S. 14-10-122.

The timing of taking action related to child support is important, whether in seeking establishment of a support order or modification of an existing order, in that statute authorizes retroactive application of child support orders back to certain events.

Establishment

In a Colorado divorce case with children, a custody case, or a stand-alone child support case, statute authorizes child support to be assessed back to either the date of filing of the case, if the parties file together or if the prospective payor is the one who files. If not, then the proverbial child support meter starts running upon personal service of the other party. As such, if you are seeking an award of child support, as well as financial accountability from the other party, it is important to file as soon as your course of action is chosen.

In most instances the court will assess child support going back to the time of service. For example, if you serve the other party with the divorce petition in June but do not get to a contested hearing until November, in most instances the court will assess support for the approximate five months leading up to the hearing. However, when assessing retroactive support, the practical norm is that the court will take the aggregate of back support owed and allow the payor to pay it in 1/24th increments over a 24 month period. Payments would be added onto the current payment until the total of retroactive support is paid in full.

Modifications

When dealing with modifications of child support, C.R.S. 14-10-122 indicates the general premise that child support shall be modified retroactive to the date a motion to modify is filed. Unlike the filing of a new case in which retroactivity may be important to just the prospective child support recipient, retroactivity in a modification setting might be important to either party. The payor might have suffered an income reduction such that he or she wants to get a motion filed as soon as possible so as to lower the monthly amount owed. Conversely, circumstances may have changed such that the recipient may also want to record a request to modify quickly to preserve an increase monthly amount.

Again, retroactivity is important in that a hearing may not take place for several months after the motion is filed. Likewise, retroactive changes to child support will generally also entail under or overpayments also being accounted for over 24 months. Aside from retroactivity back to the date of the filing of a motion, C.R.S. 14-10-122 also authorizes modification retroactive to the date of an agreed upon or court ordered change in primary residential custody of a child, regardless of when a motion is filed. In these instances, one should not wait too long to seek a change, as there are legal doctrines giving rise to the notion that failing to act on one’s legal rights for too long can bar a claimant from seeking relief down the road.

Retroactivity

When dealing with retroactivity under either statutory scheme, there are some caveats. Retroactive application of a new child support amount is not an absolute and courts are given some discretion, though not too broad. C.R.S. 14-10-122 indicates that a court does not have to apply the new child support retroactively if it finds that doing so would case an undue “financial hardship” to one of the parties. This is, of course, subjective to the judge’s beliefs. Thus, a judge in an Arapahoe County child support case might find financial hardship and negate retroactivity, where a judge in Denver may not. Despite this caveat, the norm is retroactive application, which will occur in the vast majority of cases.

Additionally, it is important when seeking a modification to keep in mind that the underlying basis to modify child support is that a “substantial and continuing” change has occurred. Therefore, though it might seem sound for the child support payor who just lost his job to go out and file for a modification right away, he should wait for at least a few weeks, if not a couple of months, to be able to show that the change is “continuing.” There is no bright-line rule, but filing too soon could lead to dismissal of the underlying motion to modify.

Our attorneys do see situations in which people wait months, or years, to take action, with the mistaken belief that the court will just give them child support or relief automatically, without them having followed specific rules as to service or the filing a of a motion. For instance, a husband and wife may be separated for years without anyone filing for divorce. We have seen instances in which one party, let’s say the wife, believes she can go back all those years to collect support. Such is not the case and the court will only go back to when the case is filed and / or service has been effectuated. Another example might be when there are multiple children and one “emancipates” or turns 19. When a child emancipates, people often wrongly assume that there is an automatic adjustment to child support that they can deal with months or years down the road. There is not and there is little with the law that is automatic.

When dealing with the financial support of your children, you should never presume the law will automatically be there to provide relief. Likewise, when dealing with all aspects of child support, including retroactivity, it is important to consult with an experienced Colorado child support attorney who can give guidance as to the intricacies and nuances that may exist or arise, as well as the financial rights of you and your children.

If you have questions about your unique case and how our team of award-winning lawyers can help you, contact Plog & Stein, P.C.