Child Support Frequently Asked Questions: Support and Custody
- I am the primary custodial parent for my one year old daughter. Do I have to work for child support purposes?
Generally not. In recognition of the fact that little children require a lot of time and effort, which can make work impractical for some parents, the Colorado legislature has seen fit to create an exception for persons primarily caring for a child under 30 months of age. In a case in which child support is an issue, a court can impute, or attribute, income to a person who is unemployed or under-employed, based on what the court believes the person has the potential to earn. Specifically, pursuant to C.R.S. 14-10-115 (5)(b)(I), “If a parent is voluntarily unemployed or under-employed, child support shall be calculated based on a determination of the potential income; except that a determination of potential income shall not be made for a parent who is ... caring for a child under the age of thirty months for whom the parents owe a joint legal responsibility....” Thus, as per statute, a court cannot impute income in this situation. However, the child must be a child of the case in question. Having a child under 30 months, not of the relationship or case in question, does not afford a person protection under this section. Over the years, we have seen parties, and sometimes attorneys, erroneously interpret this section as applying to any child under 30 months of age.
- I have physical custody, do I get to claim the kids for taxes?
Most people who have not been through a divorce with children or a child support case presume that the person who the children reside with the majority of the time gets to claim the children for taxes. People often also presume that the primary breadwinner gets to claim the kids every year. Both assumptions are wrong. Pursuant to Colorado statute, the right to claim the children for income tax dependency exemption purposes is allocated by the court proportionate to the parties’ contributions to raising the kids, meaning their income proportions. For example, if Sally makes $100,000 per year and her husband, Roger, makes $50,000 per year, Sally should be able to claim the child two out of three years, with the cycle rotating similarly thereafter. The actual allocation can be done in different ways, such as splitting up kids and/or alternating years claiming some, or all of them. Our Denver custody and child support lawyers can help you determine an effective and proper allocation of the right to claim your children for dependency exemption purposes. You should be aware of two statutory caveats. If a party does not derive a benefit from claiming a child, he or she cannot claim the child. If the child support payer does not pay all child support due during the tax year he or she is claiming, by the end of that year, he or she loses the right to claim the kid(s) that year. Physical custody has nothing to do with this allocation.
- If we have 50/50 parenting time, do I have to pay child support?
The answer to this question depends on the facts of the case. The amount of Colorado child support to be paid, established pursuant to C.R.S. 14-10-115, depends on various factors, including the incomes of the parties, number of children, health insurance and child care costs, and, of course, the number of overnights with the children. Often, people presume that because they have equal parenting time neither of them should have to pay child support. This is just not the case. The primary factor in a child support calculation is income. If the parties truly had almost identical income and there were either no insurance or child care costs, or those roughly offset each other, then the bottom line child support amount might be zero, or negligible. However, if one party makes significantly more than the other, such as $200,000 per year for one party and $50,000 for the other, there will be a child support amount owed based on the disparity of income. Likewise, if the parties have equal income, but one is paying $1000 per month in child care, the child support calculation, and worksheet that is generated, would have the second party compensating the first for his or her half of that child care expense. Thus, there is more that goes into the analysis than just “50/50 time.” Again, child support is based on a formula and, absent a good reason, parties and courts are generally not going to deviate from that formula and the end result amount.
- My ex-husband is not letting me see the kids. Can I just quit paying child support?
No. Most Colorado family law courts loathe parties taking self-help measures to remedy situations. The old adage, “two wrongs don’t make a right,” comes to mind. If the other party in your case is violating custody or visitation orders, there are remedies for dealing with that. A court will not applaud your efforts to take matters into your own hand. Rather, if you quit paying your support, you may be subject to an array of trouble, including potentially jail. We can help you resolve your issues and enforce your orders in a proper legal fashion.
- My orders say 50/50 custody and no child support, but my 14-year-old has moved in full-time with my ex-wife. Does that change my child support?
The answer to this questions begins with a “maybe.” Pursuant to C.R.S. 14-10-122(5), child support can be modified retroactively to an agreed upon change in “physical care”, which means custody, of a child. If the parties agreed that the child would live full-time with mother, the proverbial modification meter started ticking from that point. In most instances, a modification of child support can be back to the date the motion is filed, which is helpful since many courts are very slow in terms of getting people in for an actual hearing. The exception is change in custody provision set forth in subsection (5). Of course, the normal child support analysis must be done regarding income, number of overnights, health insurance, etc. In sum, the change in custody could lead to that change in support, back to the date custody changed. This rule is applicable in Denver area divorce cases, as well as custody and child support actions.