Frequently Asked Colorado Modification Questions Part 2
- I just had a new baby. Can I modify my child support?
As Denver area child support attorneys, we have seen various changes in the law over the years. Until 2008, the general rule was that children of new relationships born after the children of a child support case could not be included for child support purposes. In 2008, the law changed such that the courts do not look to determine whether children not of the relationship were born before or after the children of the child support case. Rather, pursuant to C.R.S. 14-10-115, regardless of when they were born, other children may be included in a child support worksheet so long as their inclusion does not lower the currently ordered child support amount. When “other children” are included, the child support worksheet, or software used by the courts and attorneys, gives a person, whether the payer or recipient, credit for the other children by reducing their income used for child support purposes. There is also a distinction between being able to include other children and the reduction in income one might get based on an actual child support order being paid for other children.
- My ex quit her job. Can she modify her child support and alimony?
The general rule of thumb divorce and custody attorneys in Denver follow is that you cannot just quit your job and expect to get a modification of child support or alimony. In such an instance, the court would find this person to be voluntarily unemployed. As such, the court will likely attribute the person’s old income to him or her and not grant a modification. It is a different story if someone is fired or laid off. In those instances, the court will look at what efforts have been made to gain new, similar employment. Quitting a job is a whole different ball game and Colorado courts do not give people a benefit on child support or alimony for deciding they are just not going to work.
- Our orders let my wife claim the tax exemption for our child each year. Can I modify that?
C.R.S. 14-10-115 sets forth the general statutory provisions regarding child support. This includes lesser issues beyond the establishment of an actual child support figure, such as matters regarding the tax exemption, payment of other expenses related to the child, etc. C.R.S. 14-10-115 indicates that a court shall generally allocate the right to claim the dependency exemption for a child proportionate to income of the parties. Most Denver area courts, with the support of case law behind them, will view the issue of reallocating the right to claim a child for income tax dependency exemption purposes as ripe for modification with a request to modify child support. In the scenario posted in the question set forth above, the wife was likely allocated the exemption each year based on her being vastly, or solely, responsible for the financial support of the child. If circumstances have changed such that husband is now working to the extent that a change in child support is appropriate, he should seek a reallocation of the exemption and the right to claim the child in an income proportionate fashion.
Though some courts may allow a de-novo, or new, request to enter orders allocating the dependency exemption, in cases in which such has not been done, most courts will not entertain reallocating the exemption as set forth in prior orders unless the issue of child support modification is also at hand. With a request for modification of child support, a divorce attorney in Denver will also inform you of your potential rights regarding modifying other aspects of your child support orders, such as provisions regarding payment of activity costs or uninsured medical expenses. These items are also dealt with on an income proportionate basis and are also ripe for modification with a request related to child support.
- Can the terms of a permanent restraining order be modified?
The answer to this question is “yes.” However, the standards and circumstances differ depending on whether the protected or restrained person is the one seeking the modification. Our firm takes each restraining order case very seriously, whether on its own, or in a Denver custody or divorce case. There is no greater area of concern than your personal safety and that of your children. Courts take this view as well. As such, the standards for modification of a protection order are more rigorous that those related to other aspects of the law.
Pursuant to C.R.S. 13-14-102 (17.5)(a), Colorado restraining orders can be modified essentially any time by the protected party. However, the restrained party is limited to seeking a modification of the terms either four years after the order was originally entered, or four years after the last request to modify was ruled on. This can include provisions regarding protection of the parties’ children. Once permanent provisions are entered protecting a child, the restrained parent is divested of the normal modification procedures set forth in the domestic relations statutes and will have to wait at least four years to seek changes. When looking at modification of a restraining order, a court will look at certain factors, including:
- Whether the restrained person has complied with the original order
- Whether the restrained person has voluntarily engaged in domestic violence or anger management classes
- The length of time since the original restraining order was issued
- Changes in location or proximity of the parties
- Whether the restrained party has been convicted of any new crimes of violence
- Whether there have been any new restraining orders issued against the restrained person
Of course, the concerns of the protected person will also be a factor and she, or he, will have the chance to respond to any motion to modify. The standards for modifying a restraining order are heightened due to the stakes being high and safety being a true issue.
- What is the standard to modify my alimony?
The standard for modification of alimony, or spousal maintenance, is set forth, as with child support, in C.R.S. 14-10-122. However, unlike child support modification, the standard is undefined and not tied into a specific numerical or dollar threshold. Specifically, C.R.S. 14-10-122 indicates, “the provisions of any decree respecting maintenance may be modified... only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair.” In any motion or hearing regarding a modification of alimony, the judge will ultimately be the one who decides what is “fair” or “unfair.” As such, the outcome in any modification of maintenance case can truly depend upon the judge’s subjective viewpoints on all relevant factors. With a child support modification, one only needs to show that numbers have changed, such as income, day care costs, etc., such that the bottom line child support amount would change by 10% or more. The same equation or formula does not apply to an alimony modification. Though statute and case law define a “substantial and continuing” change as one leading to a 10% or more change in child support, there is not guide post for assessing whether changes in circumstances tied into alimony meet that statutory criteria. Furthermore, unlike a child support modification, in order to get maintenance modified, one must show that the prior orders are also now “unfair.” We are adept at analyzing each case to assess whether the changes presented are substantial and continuing to the point that the terms of the existing alimony order are unfair.
Prior to assessing any existing alimony, or maintenance, order for court modification purposes, it is important to ascertain whether that order contains provisions divesting the court of jurisdiction to modify. Specifically, parties may have previously entered into a contractual and non-modifiable agreement regarding the alimony. If so, the court is divested of any jurisdiction to alter the prior order and the alimony cannot be modified, under any circumstances.
Main Modification FAQs