By: Stephen J. Plog
As indicated in many previous Plog & Stein blog posts, Colorado Revised Statutes indicate that parents have a legal obligation to provide financial support for their children. This requirement is manifested in child support orders flowing from child custody, divorce, or stand-alone child support cases. Monthly child support amounts are calculated pursuant to C.R.S. 14-10-115 and pursuant to a table or formula which is essentially based on the parents’ combined incomes and the number of children to be supported. Statute expressly caps the formula at a combined adjusted gross income for the parents at $30,000 per month or $360,000 per year. Where does this leave high income families with a combined monthly income over the $30,000 cap?
In cases in which the parents’ combined gross monthly income is over $30,000, the court has various options available to it, though it cannot enter a child support order below what it would be at exactly $30,000 combined income, unless it has a good reason to deviate from the guidelines. Specifically, C.R.S. 14-10-115 (7)(a)(II)(E) states, “The judge may use discretion to determine child support in circumstances where combined adjusted gross income exceeds the uppermost levels of the schedule of basic child support obligation; except that the presumptive basic child support obligation shall not be less than it would be based on the highest level of adjusted gross income set forth in the schedule of basic child support obligation.” While a minimum amount is clearly set by statute, an amount above that minimum is squarely up to the judge presiding over the case, as reiterated or clarified in a recent Colorado child support case.
In practice, the dynamic will usually go that the party with the higher income will argue that the top guideline amount should not be exceeded and that child support should be set at the minimum level (maximum on the table). The other side, earning less income, will generally argue that child support should exceed the guideline amount and will ask the court to extrapolate using the guidelines or to set an arbitrary monthly support amount based on other factors. In assessing this type of case, what are the factors the court should look at? Guidance can be found in C.R.S. 14-10-115 (2)(b), which indicates, “In determining the amount of child support …, the court shall consider all relevant factors, including:
(I) The financial resources of the child;
(II) The financial resources of the custodial parent;
(III) The standard of living the child would have enjoyed had the marriage not been dissolved;
(IV) The physical and emotional condition of the child and his or her educational needs; and
(V) The financial resources and needs of the noncustodial parent.
While in the typical case, the attorneys know that child support is most likely (if not always) going to be set based on the monthly guidelines, they must be prepared to address and argue these specific factors when dealing with high income families. Thus, while child support is often a clear cut issue, it is not so clear when the $30,000 cap is exceeded. For lack of a better term, the outcome of a high income child support case can be “grey.”
Over the years I have seen some judges preemptively state they do not exceed the guidelines in high income cases. I have seen other judges more open to exceeding that cap. The norm would be appropriate application of statute without preconceived notions.
In reality, the pivotal factor in a high income child support case is still going to be the parties’ incomes. However, in some cases, such as a divorce, high income comes with high assets, meaning both parties may receive a significant amount of assets such that the potential payer might argue the recipient is financially fine on his or her own as relates to the ability to support the child without exceeding the cap. That being said, high income household may often come with more expensive needs, such as private school, costly activities, etc. The family law practitioner needs to be abreast of the relevant statutory sections and ready to make arguments, both as part of settlement discussions or litigation, tied into their position as relates to those factors.