By: Michelle L. Searcy
At the most basic level, the Colorado child support calculation is based on the combined income of the parents, the number of children and the number of overnights exercised by each parent in Colorado. Calculating income for a parent with a job that issues a W-2 is a fairly straight forward process. However, less traditional forms of income have the potential to complicate calculating child support. One of the more difficult issues in determining child support occur when a disability occurs with parents, step-parents, or children. This article addresses those issues under the child support statute, section 14-10-115, C.R.S.
However, death and disability payments are treated differently depending on who is disabled (or deceased) and who is the named recipient of the benefit. These distinctions determine whether the benefit is considered as income to the parent, income to the child, or an offset against a child support obligation. As set forth below, the interplay between child support and social security benefits can be somewhat complex.
The first step in any child support calculation is determining the income of the parents. Section 14-10-115 (5), C.R.S. sets forth the criteria for determining a parent’s income for child support calculation purposes and includes many forms of financial payments. Where a parent receives social security benefits as a result of the disability of that parent or the death of a stepparent, it is included as income to the parent for child support calculation purposes. However, only those benefits received directly by the parent for those reasons are considered income of the parent.
Often, in addition to the benefit received by the parent, a benefit is paid to the child. The benefits received by the minor child or on behalf of the minor child, due to the death or disability of a stepparent, are not included as income to the parent or the child. However, benefits received by the minor child or on behalf of the minor child as a result of the disability of a parent can be included as income of the child for support calculation purposes, depending on the circumstances. This can make a difference because in some cases, the child’s income may be considered as a factor to lower both parents’ support obligation. The benefit received may result in a proportionate reduction of each parent’s child support obligation in the same way that a child’s income from a part-time job, who is expected to pay some of his or her basic expenses, may be considered.
As stated previously, the court will consider a disability benefit paid to a disabled parent as that parent’s income. If the disabled parent is not the custodial parent (the parent with the majority of the parenting time), the custodial parent can request to be made the payee for the child’s portion of disability benefits paid by the federal government or employer-paid retirement benefits from the federal government based on the non-custodial parent’s disability or retirement. In these cases, the non-custodial, disabled parent will receive a dollar for dollar offset of his or her child support obligation. Furthermore, any lump sum payments received by the custodial parent must be applied to any child support arrearages incurred since the disability or retirement of the non-custodial parent. If the non-custodial parent receives this payment, it is income to the parent and child support is calculated accordingly.
The different nuances tied into social security disability payments and child support, particularly as relates to income of a child, can greatly impact a calculation. Regardless of which parent is disabled, the child support recipient is generally going to be the one who faces a reduction in the monthly child support he or she receives. Looking at it from a different perspective, when the child receives income due to the disability of either parent, that money is generally going to be used in the home of the custodial parent.
Whenever the issue of social security disability payments arises in a child support case, it’s important to understand your rights, options, and risks. It’s also advisable to consult with a child support lawyer before making any significant decisions.