Modification Frequently Asked Questions: Modifying Child Support
- How far back can I modify child support?
Child support modifications are governed by C.R.S. 14-10-122. In most instances, a modification of child support can be assessed or made retroactive to the date a motion to modify is filed. This is an important factor to keep in mind in that requesting a modification in a timely fashion upon ascertaining that facts exist to support such can mean potentially hundreds or thousands of dollars either gained or saved, depending upon whether the party is the payer or payee. The actual modification would not be made until the issue’s hearing, or agreement of the parties, but will generally factor in any over or underpayment going back to the date of filing. The court does have discretion to not make the modification retroactive to the date of filing if such would create a financial hardship for one of the parties. We rarely see the courts invoke this hardship provision. C.R.S. 14-10-122(5) also authorized modification of child support retroactive to the date of an agreed upon change in residential custody from one parent to the other. In such an instance, the analysis would require calculating child support from the day of the change in custody forward. It is not uncommon to see cases in that parties go years without making the change, only to have the new support assessed well after the fact.
- 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 and wants to lower the child support she pays. Can she do that?
Generally, the answer is "no." In Colorado, family law courts generally hold people to language set forth in the child support statute, which indicates a duty for both parents to be employed to the best of their ability. When a parent just quits his or her job, a court will generally find him or her to be voluntarily under-employed and will likely attribute his or her old income from the job that was quit for purposes of calculating child support. Thus, a court will not likely find quitting a job to be a meritorious reason for modifying child support. Courts may allow voluntary quitting of a job to be a basis for modifying child support, but generally only if this relates to going to school with the end goal of making more money or a good faith career change ultimately designed to lead to more income.
- 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.
- What is the standard for modifying child support?
In Colorado, the standard for modifying child support is that there has been a "substantial and continuing change in circumstances" leading to a 10% or more change in the current child support amount. In essence, the numbers that go into a child support calculation must change such that the child support amount changes by 10% or more. For example, let's say Bob makes $100,000 per year and Karen makes $200,000 per year and that Bob pays Karen $500 per month for support of their son, Timmy. Bob gets demoted at work and his pay is decreased to $50,000 per year. If the new income is plugged into the formula and the bottom line amount changes to $449 per month, then Bob can modify his child support because the amount has gone down by $50 per month or more (10%).Changes to child support also often occur based on changes to visitation or custody.