Frequently Asked Colorado Child Support Questions Part 4
- What’s the maximum percent that can be garnished from my pay for child support?
Generally, an employer may withhold 60% of a person’s disposable income for purposes of garnishing a current Colorado child support obligation. In instances in that back child support is being garnished pursuant to a judgment and writ, an employer can withhold between 35% and 50% of disposable pay. The fluctuation in the amounts depends upon whether the party being garnished in supporting a spouse or dependent child, and the length of time covered in the underlying child support judgment. Disposable income will generally mean income left after state and federal taxes, and other normal deductions, are subtracted from a person’s gross pay.
- 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.
- My oldest is turning 19. Can I modify child support?
Pursuant to C.R.S. 14-10-115(13), unless disabled or still in high school, a child emancipates for child support purposes at age 19. Often times, people will have multiple children. There is a common belief that when the oldest child turns 19, child support either automatically modifies or will logically go down. As such, the issue of a modification arises. However, the oldest child dropping off, let’s say in a family of three children, will not always lead to the change the payer is seeking. For purposes of exemplification, let’s say at the time the parties were divorced five years ago, there was a 12-year-old, a 13-year-old, and a 14-year-old. At the time orders were entered, the payer was making $5,000 per month and the payee was making $1000, rendering a monthly child support amount of $500. Jumping forward five years, the 14-year-old is now turning 19. Let’s say that the payer is now making $7,000 per month and the payee is still making $1000. Though certainly from a legal standpoint, the duty to continuing paying for the now 19-year-old ends, the parties will still need to run a new child support calculation, using the statutory guidelines, to see what the new figure for the remaining two children will be. This new calculation will, of course, factor in the new income. With the payer’s increased income, there is a chance that the new child support amount, even though there are now only two kids left, could be the same, or even more. It could also go down, but must go down by 10% or more in order for the child support to be reduced. In sum, when the oldest child turns 19, you can certainly look into modification. However, depending on the numbers, a reduction may not automatic follow. When the child’s 19th birthday is approaching, it would be wise to contact a Denver child support attorney to assess the figures. Nothing is automatic until the last child reaches 19 years of age.
- My ex-wife wants a wage assignment for child support. What can I do?
As divorce attorneys in Denver, the general rule of thumb followed by our legal team is that if one party wants child support to be paid through an income assignment, it will generally happen. Most courts also ascribe to this theory. C.R.S. 14-14-111.5 sets forth the rules, and exceptions thereto, regarding income assignments. For support orders entered after July 1, 1996, an income assignment can be activated automatically and there is generally nothing the payer can do. However, there are a couple of exceptions. If the parties have entered into a written agreement that child support will be paid in some form other than an income assignment, the child support recipient cannot just issue an income assignment. In such an instance, he or she will need to file a motion with the court requesting the income assignment. Grounds for activation that a court will entertain will include things like late payments or missed payments. Thus, if your agreement indicates an alternative method to pay child support and you have paid on time, a court may not allow activation of the income assignment.
Additionally, if a party seeks an income assignment, the payer may be able to stop such if he or she can demonstrate good cause why one should not be issued, including evidence that an income assignment would not be in the best interest of the children, that the payer has entered into a written agreement with the obligee to keep him or her informed of employment and health insurance coverage, and the payer can demonstrate that prior payments have been made in a timely fashion. Absent an agreement to an alternate method, with new orders, an income assignment can be issued with no advance notice. In most instances, people will seek an income assignment when payments are late or not made. Additionally, though orders may set forth an alternate method of payment, our attorneys will almost always insist upon a provision in either the decree of dissolution of marriage, or any agreement, that if support is late by “x” days more than “x” times, the recipient may execute an income assignment without needing to file a motion with the court.
- How do social security payments to the children affect child support?
Pursuant to C.R.S. 14-10-115(11c), “If cases where the custodial parent receives periodic disability benefits granted by the federal ‘Old-age, Survivors, and Disability Insurance act’ on behalf of dependent children due to the disability of the noncustodial parent or receives employer-paid retirement benefits from the federal benefit on behalf of dependent children due to the retirement of the noncustodial parent, the noncustodial parent’s share of the total child support obligation as determined pursuant to subsection (8) of this section shall be reduced in an amount equal to the amount of the benefits. In English, this means that if the child support payer is disable and a monthly check is provided to the custodial parent by the Social Security Administration, the child support obligation should be lowered in a dollar-for-dollar sense. To exemplify, if the father has custody of the children and the mother is paying $500 per month in child support, and mother becomes disabled, and as a result, the government sends $250 per month to the custodial father for the children, then mother’s child support should be modified or reduced down to $250. This statutory provision makes absolute sense, as child support is set based on the state’s determinations of financial need for the children.
Main Child Support FAQs