As experienced family law attorneys in the Denver area, we have seen a multitude of situations over the years in divorce, custody and child support cases. Having represented more clients than easily countable, we have observed certain scenarios arise, now and then, for which there is no specific statutory remedy or answer. In other words, we sometimes find ourselves pondering or debating why the Colorado Legislature, with multiple members and input from the domestic relations bar, could leave certain aspects of statute vague or with no specific rule? As we see these types of issue arise over and over, so should other attorneys. Regardless, the gaps go unchanged. Below are some of those gaps in statute, related to child support, which are in need of bridging through additional language.
1. C.R.S. 14-10-122 is the statutory section dealing with modification of child support. C.R.S. 14-10-122 indicates that a modification of child support can be applied retroactively to either the date a motion is filed, or when an agreed upon change in custody of a child occurs. The second scenario will still ultimately require a motion. The rationale in this retroactivity is that it can take some time for parties to actually obtain a court hearing and get a change to child support change formally effectuated or ruled upon. Despite these protections afforded to the parties, there are still instances in which statute could provide more guidance. One relates to stopping child support upon that change in custody, whether agreed upon or not. We have seen cases in which the child goes from mom to dad, or vice versa, and contrary to the terms of the current custody orders . In some cases, one party may take on the custodial obligations for the child, but continues to be saddled with paying the child support obligation until such time as the matter goes to court, if at all. Realistically, as simple rule indicating that when custody changes, regardless of agreed upon or not, the duty to pay child support automatically abates until such time as a hearing occurs. With this type of a black and white rule, the party taking custody of the child is not burdened with technically having to pay the other party until such time as a court hearing, which can take months. As a matter of fairness and financial practicality, the party obtaining custody shouldn’t have to go to court for other proceedings to get his or her Colorado child support stopped. Of course this is a separate issue from whether he or she wants to receive child support. Simple language, such as “when a change in primary residential care occurs, regardless of the reason, and regardless of whether the new custodial parent seeks a modification, the obligation to pay child support shall automatically be abated until such time as a hearing is held.” This language would not eliminate the potential for factual he-said/she-said arguments. It would, however, provide immediate relief.
2. In some child support situations, a person pays child support through what is called an “income withholding for support,” or what may be referred to as an “income assignment.” Income assignments are essentially a specific document instructing an employer to withhold child support from the obligor’s pay, to be forwarded to the obligee. Another gap in statute relates to situations in which a person is paying child support and the/a child reaches the magical age of emancipation, 19. We have fielded countless calls over the years in which a potential client calls indicating that despite the child turning 19, their employer will not terminate the income assignment without a court order. C.R.S. 14-10-115 clearly indicates that child support generally terminates upon a child turning 19 years of age. However, employers do not know this and, thus, use caution. Statute could be clarified, from a functionality point, to address this situation such that a person is not required to take further court action to stop the garnishment. This could be accomplished by simply adding language into either section 115 or 122 indicating, “upon the last child reaching the age of 19, all income withholdings for support shall automatically terminate. Upon the obligor providing the employer with a copy of the court orders, as well as a birth certificate for the child, the income withholding shall stop.” This does raise issues of situations in which the obligor might provide the employer inaccurate information, whether intentionally or otherwise. A simple, required notice sent to the other party informing them of the termination would then put them on notice should there error or dishonesty.
3. Related to topic ‘2’ above, we have also seen situations in which, due to the timing of the implementation or termination of an income withholding, the obligee or payee, may receive an extra payment or two which he or she is not technically entitled to. Statute makes no mention of these situations and, at times, the payor who has overpaid is forced to take action with the court, which leads to the potential incurring of more costs and fees. In these situations, someone might be forced to spend several hundred dollars, or more, on an attorney, to get the same amount, or sometimes less, back from the other party. This situation could easily be resolved by statutory language indicating, “if a party receives excess and unearned support due to the timing of the implementation or termination of an income withholding for support to which he or she is not entitled, that excess payment shall be returned to the obligor within 30 days of disbursement to the obligee. If those excess funds are not returned within said 30 days, interest shall start accruing, at the statutory rate, until repaid. If the obligor is forced to seek relief from the court to recoup the excess support paid, and upon a finding that the obligee was not entitled to said fund, the obligor shall be entitled to all necessary fees and costs incurred to recoup said excess funds.” This language would create a bright line procedure and caution both parties as to the consequences when one wrongly retains funds.
4. Another easily resolvable gap in child support statute(s) arises in situations in which there are multiple children covered under a child support order and one of them emancipates. In these instances, the natural thought process of the payor is that his or her support obligation should automatically reduce by the proportion of children dropping off the equation. For example, people often presume that their $1000 per month child support obligation for 3 children drops down to $667 when the oldest turns 19. It does not and there is nothing automatic. As incomes and expenses can change overtime, statute not providing for an automatic or instantaneous modification in situations where there are still children to be support is appropriate. However, statue should provide both parties rights or options by indicating that in these situations, child support for the remaining children shall be modifiable retroactively to the first day of the first month after the eldest child emancipates. Statute could also indicate that the right to seek that modification based on the emancipation must be sought with the court within 6 months of the emancipation. This way, the parties are both afforded fairness in terms of assessing what the new amount should be. Likewise, the payor would be afforded fair treatment by being able to potentially avoid having to pay the payee extra money without having to run out at 19 years and 1 day to file a motion. Conversely, the parties are not given a proverbial blank check to let the retro
activity just accrue for years before taking action.
5. C.R.S. 14-10-115(5) sets forth definitions of what is or is not income for child support calculation purposes. Statute indicates that a second job beyond 40 hours per week of work should not be included in a child support calculation. However, statute indicates that certain income derived from self employment or business ventures should be included. Questions can arise in that someone might have a second job as a W-2 employee, the income from which would not count. Let’s say that second job is as a computer programmer. Another person could have that same second job, but be paid in an independent contractor situation, thus receiving a 1099 tax form. In that instance, there is a strong argument that the income for the 1099 worker is income from self employment, regardless of whether the pay received or duties performed are similar. Statute could be, and should be, more clear, as to how secondary sources of income for work performed, beyond one’s full time job are treated. Likewise, the same computer programmer earning a little extra each month doing side jobs could also increase the income used for child support purposes, as such would technically be self employment. How a court treats the 1099 work or side jobs will be subjective to the judge. One way for the 1099 worker to get around concerns regarding the additional income would be to set up a company paid by the contract employer, which then writes him a pay check and issues a W-2. Another would be to just make statute more uniform as to additional income earned through work.
6. Colorado child support does not just mean a monthly amount paid. Rather, there are also various fringe issues or obligations which also fall under the heading. This can include the payment of medical expenses for a child, which is in addition to any monthly child support amount. C.R.S. 14-10-115 indicates that “extraordinary medical expenses” shall be allocated according to the parties income after the first $250 per year, per child paid out of pocket. Sadly, statute does not specifically indicate who eats the cost of the first $250. Secondly, though statute sets for the notion that such expenses should be divided, there is no language as to how this should be effectuated. As such, we see court battles in which one parent might present the other with a copy of a bill, but the receiving parent does not pay timely. Conversely, we also see instances in which one parent might just sit on multiple bills for months, or years, only to spring them on the other after an insurmountable figure owed has piled up. Moreover, statute makes no mention of how one parent is to provide the other proof that bill was even incurred. With simple language, the problems set forth above could be resolved. The inclusion of simple language, such as “the party incurring any such expense for a child shall have 30 days from receipt of a final bill to provide the other a copy of the bill. The second parent shall then have 30 days therefrom to reimburse the first.” This simple language would create a clear cut procedure for both parents, thereby taking away confusion and the potential for argument.
Each of the example listed above exemplifies a situation in which some simple retooling of statutory language to include a little more detail could save litigants and courts both money and time. These examples are just a few of many gaps in statute concerning child support. There are gaps in the other areas of Colorado divorce, custody, and child support law also worth mention. The next posting on statutory gaps will focus on gaps in the law related to custody, parenting time, parental responsibilities, and other child related matters. Following that maintenance and property division gaps will also be looked at. The law is evolving and never perfect. That beings said, some simple statutory changes could help toward perfection from a clarity standpoint, and could alleviate a decent amount of the cases brought to the courts’ dockets. Contact the experienced Colorado family law attorneys at Plog & Stein to see about getting your court orders more concise and functional.
Gaps in Colorado Family Law Statutes (Part 2: Child Custody and Visitation)