Statutory Changes, Overnights, and Deviation from Child Support Guidelines

By: Sarah T. McCain

At the commencement of the New Year, various revisions to Colorado child support statute came into effect. Changes to the ability to claim a non-joint child on the child support worksheet was covered in a prior blog post. The other revisions to this statute, while seemingly small in nature, should be reviewed to ensure that they are properly addressed. If they apply to you, it is important to take advantage of these changes.

When you are putting together a Separation Agreement or custody stipulation and child support is at issue, you will find yourself putting together a child support worksheet. This worksheet will provide you with an end figure that is the proposed amount to be paid on a monthly basis. A Court will follow this figure closely but there are avenues for change to the bottom line monthly amount. Colorado Revised Statute, Section 14-10-115(8)(e) covers deviations from the child support guidelines. Prior to January 1, 2017, the language covering this allowed for specific deviations as stated as follows:

“These reasons may include, but are not limited to, the extraordinary medical expenses incurred for treatment of either parent or a current spouse, extraordinary costs associated with parenting time, the gross disparity in income between the parents, the ownership by a parent of a substantial non-income producing asset, consistent overtime not considered in gross income under sub-subparagraph (C) of subparagraph (II) of paragraph (a) of subsection (5) of this section, or income from employment that is in addition to a full-time job or that results in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment”

This has been modified, commencing January 1, 2017, to the following:

“These reasons may include, but are not limited to, instances where one of the parents spends substantially more time with the child than is reflected by a straight calculation of overnights, the extraordinary medical expenses incurred for treatment of either parent or a current spouse, extraordinary costs associated with parenting time, the gross disparity in income between the parents, the ownership by a parent of a substantial non-income producing asset, consistent overtime not considered in gross income under sub-subparagraph (C) of subparagraph (II) of paragraph (a) of subsection (5) of this section, or income from employment that is in addition to a full-time job or that results in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment.”

On of the quintessential, age-old battles in the Colorado child support arena ties into the interplay between overnight parenting time and child support. Specifically, when the non-custodial parent has 93 or more overnights per year with the children his or her monthly child support amount will generally go down incrementally with each overnight above the 93 benchmark. Given the impact parenting time has on child support, there if often legal wrangling over the amount of overnights each parent has. Courts generally frown upon people battling over parenting time based on child support. Regardless, it happens. The additional, new language in statute may have somewhat of an impact on that battle and provides relief to some parents who may spend significant time with children, but are unable to do in an overnight sense. The new language may provide parents with an excellent argument for a deviation from the worksheet.

In practice, Denver family law attorneys sometimes see a situation in which one parent is spending significant time with the children but that has a limited number of overnights with the them due to a variety of reasons. Perhaps they work nights but provide all of the care during the day time hours. Under the pre-2017 version of statute that parent would have been given credit for a minimal overnights on the child support worksheet, resulting in a higher child support obligation, despite the fact that they are caring for the minor child on a daily basis. They may, in fact, actually have more waking hours with the minor child due to the parenting time arrangement. Under the new statutory language, an argument could be made, both to the Court and as part of settlement negotiations, that a deviation from the Section 115 guidelines is appropriate due to the significant amount of day time visitation. The specific amount of deviation is not provided in terms of any type of formula and will be up to the discretion of a judge if it goes past negotiations and to the Court hearing process. If a deviation is reached as part of negotiations, a written description of why the deviation was considered and made a part of the agreement must be provided to the Court with the written agreement. Without that description, the Court will only have the worksheet to review and may question the basis of the deviation. Given the newness of this statutory change, we as family law practitioners have yet to see how courts will deal with the situations.