Frequently Asked Questions About Child Support
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Have questions about child support? Our Denver divorce lawyers at Plog & Stein, P.C. have added the answers to some commonly asked questions about child support below. We hope you find this information useful as you decide to move forward with your child support needs.
Become informed about your child support rights!
- How is child support determined?
Child support is determined based on several factors. The primary ones are the incomes of each party, the number of children, the number of overnights (if over 93 per year) for the non-custodial parent, day care (if any), and health insurance costs for the children. The factors are all plugged into a software program and the amount of monthly child support is generated. The software used by attorneys is based on a formula and child support table set forth in C.R.S. 14-10-115. Child support is generally not based on expenses or property. Though the statutory formula is a reflection of what the legislature has determined to be the dollar amount(s) needed to raise a child, the actual "needs" of a child are not generally an issue argued in court. In most instances, the court will follow the statutory guidelines, barring extreme circumstances.
Unless a child is still in high school (up to age 21), or is disabled to the point of being unable to take care of himself or herself, child support runs until the child turns 19 years of age. If the child enters the military before then or truly becomes self-sufficient, child support may terminate prior due to the child's "emancipation.” In instances where a court order from another state is registered in Colorado for modification or enforcement purposes, the age from the original state will govern.
No. In a divorce case, the duty to pay child support starts from either the date of the filing of the case by the party who is to pay child support or service of the petition and summons on the person who is to pay child support. Both of these events give the court jurisdiction over the payer. The same holds true for a custody case. In a paternity case, child support, including birthing costs, can be assessed all the way back to the birth of the child. These points of law are important for both parties to know in terms of when the proverbial financial clock starts ticking.
No. As of July 1, 1997, Colorado courts could no longer force a party to pay for college in any new cases or in cases done prior to that date in which college was not ordered. However, if a party to a child support case, or divorce or custody case, agrees via a written agreement submitted to the court to be responsible for all or part of college costs, a court will generally hold that person to that agreement. See C.R.S. 14-10-115.
No. Courts do not generally factor in personal expenses for child support purposes. Child support has nothing to do with one's personal expense or whether he can afford to pay. Most courts view the child support guideline amounts as binding and what should be paid. A child support payer should always factor in his or her monthly child support payment as the most important expense when budgeting or taking on new financial obligations.
No. The income of new spouses, or spouses in just a custody case, has no bearing on a child support calculation. However, the cost of a spouse to cover the cost of health insurance for a child may be factored into a child support calculation.
Most people who have not been through a divorce with children or a child support case presume that the person who the children reside with the majority of the time gets to claim the children for taxes. People often also presume that the primary breadwinner gets to claim the kids every year. Both assumptions are wrong. Pursuant to Colorado statute, the right to claim the children for income tax dependency exemption purposes is allocated by the court proportionate to the parties’ contributions to raising the kids, meaning their income proportions. For example, if Sally makes $100,000 per year and her husband, Roger, makes $50,000 per year, Sally should be able to claim the child two out of three years, with the cycle rotating similarly thereafter. The actual allocation can be done in different ways, such as splitting up kids and/or alternating years claiming some, or all of them. Our Denver custody and child support lawyers can help you determine an effective and proper allocation of the right to claim your children for dependency exemption purposes. You should be aware of two statutory caveats. If a party does not derive a benefit from claiming a child, he or she cannot claim the child. If the child support payer does not pay all child support due during the tax year he or she is claiming, by the end of that year, he or she loses the right to claim the kid(s) that year. Physical custody has nothing to do with this allocation.
The answer to this questions begins with a “maybe.” Pursuant to C.R.S. 14-10-122(5), child support can be modified retroactively to an agreed upon change in “physical care”, which means custody, of a child. If the parties agreed that the child would live full-time with mother, the proverbial modification meter started ticking from that point. In most instances, a modification of child support can be back to the date the motion is filed, which is helpful since many courts are very slow in terms of getting people in for an actual hearing. The exception is change in custody provision set forth in subsection (5). Of course, the normal child support analysis must be done regarding income, number of overnights, health insurance, etc. In sum, the change in custody could lead to that change in support, back to the date custody changed. This rule is applicable in Denver area divorce cases, as well as custody and child support actions.
If the court determines that the educational program sought is done in good faith, with the intent of ultimately making more money, most Denver area judges will cut the person going back to school a break in terms of his or her income. This does not mean that judges, and our legal team, are not able to spot career students. We are. However, if the education pursuit is truly determined to be legitimate, the court may very well give someone a pass, including potentially calling his or her income $0.00 per month for child support purposes. C.R.S. 14-10-115 specifically sets forth language regarding the issue of a parent being enrolled in school. Statute also indicates that this cannot unreasonably deprive a child of support. There is no black and white answer and each case must be looked at on an individual basis. Courts will also likely set forth provisions regarding time frames, reporting if school is quit, review upon graduation, etc.
Both the Family Support Registry (FSR) and the Child Support Enforcement Unit (CSEU) are state-level governmental agencies that deal with collection of child support. As Denver child support attorneys, it is quite common for us to talk to people with mistaken beliefs as to the entities and their roles or functions. The FSR is a state-run central holding tank that receives child support (and alimony) payments from the payers and then distributes the funds out to the payees. The FSR can now distribute payments to the recipient via check, direct deposit, or directly onto an FSR card, which functions much like a credit card. The FSR is also a good tool for keeping track of the child support payment history in your case. In Colorado, if either party to a child support case requests that payments be made through the FSR, the court will grant that request over any objection from the other party. The FSR is not a child support collection agency. It does not deal with enforcement of orders, non-payment, or collection from those who are not paying.
People often presume that the FSR is the same thing as, or a branch, of a county’s CSEU. Each county has its own CSEU, which generally functions in tandem with a special branch of the District Attorney’s office. The CSEU is primarily charged with establishing, modifying, and enforcing child support, and sometimes alimony orders. Any party to a child support case can sign up for CSEU services for a nominal intake fee. Unlike the FSR, the CSEU is the agency which will take various types of measures to see that child support orders are followed, including income assignments, wage garnishment, liens, contempt of court proceedings, tax refund intercepts, and the suspension of driver’s or other professional licenses for non-payment of child support.
The CSEU can also be a helpful tool in terms of tracking finding employment information on someone who is not paying, as it can access Department of Labor records. The CSEU can also assist with transferring child support matters to other states, or enforcing foreign child support orders. Though private attorneys can take many of the same steps, their reach may not be as far as the CSEU and generally does not cross state lines. At the same time, the CSEU may be slower than a private attorney in terms of establishing, modifying, or collecting child support. People signing up for enforcement services may also give up some of their rights in terms of having a say in terms of how much back support is collected.
No. Pursuant to C.R.S. 14-10-115 (13)(III), if a child over 19 is still in high school or an equivalent program, child support can continue until the end of the month following graduation. If the child drops out and then returns, child support can also continue. However, it cannot continue beyond age 21.
No. Most Colorado family law courts loathe parties taking self-help measures to remedy situations. The old adage, “two wrongs don’t make a right,” comes to mind. If the other party in your case is violating custody or visitation orders, there are remedies for dealing with that. A court will not applaud your efforts to take matters into your own hand. Rather, if you quit paying your support, you may be subject to an array of trouble, including potentially jail. We can help you resolve your issues and enforce your orders in a proper legal fashion.
Yes. Pursuant to C.R.S. 14-10-122, each child support payment not made automatically becomes an enforceable judgment as a matter of law. Additionally, statute indicates the interest shall accrue on the back child support at the rate of 12% per year, compounded monthly, on each payment. Our Denver divorce and custody attorneys have represented both payers and recipients in cases involving back child support and interest. We have seen cases in which the principal amount of child support owed might be $100,000. However, after many years of non-payment, the principal and interest total might be $300,000. It is important for payers to know that this interest is accruing on each missed payment. It is also important for Colorado child support recipients to know that they, or rather their children, are entitled to this interest. Parties to a child support case should be aware that most Child Support Enforcement Units will not deal with the establishment of interest, but will enforce orders or judgments that have interest already calculated.
Yes. Pursuant to C.R.S. 14-14-111.5 (16.7), an employer may deduct a processing fee of up to $5.00 each month from a child support payer’s pay, after the support is taken out. It is our experience that these occasions are few and far between. Our experienced family law attorneys have probably seen roughly 5 instances in more than a decade in which a fee is charged as part of the garnishment process.
When child support is paid through an income assignment, it is common practice for the payments to be made on a per check/per year basis. For example, if a person is scheduled to pay $500 per month in child support and is paid on the 1st and 15th of the month (twice per month), then the payment with each check would be $250. However, if that same person is paid every other week, the per check calculation would be different. In that instance, the child support recipient would be paid based on the following calculation: $500 per month child support payment (x) 12 months equals $6000 total obligation for the year. That figure would then be divided by 26 pay periods (52 weeks per year divided by 2). In that instance, the per pay check amount of child support paid would be $230.77. In some months, the payee would be shorted, receiving only $461.54. However, there will be several months during the year in which three payments are received, for a total of $692.31. In essence, things will balance out such that the yearly total of $6000 is paid. Unfortunately, this is a double-edged sword for both the payer and payee in some months.
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.
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.
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.
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.
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.
No. Child support enforcement units are only charged with enforcing orders for actual “child support,” and collecting such. In some counties, the unit will also assist with collection of alimony (maintenance) if there is also a child support order. Though medical bills for children are certainly child support related, they are not actual “child support,” unless the orders or agreement specifically say they are. If compensation for medical bills is owed, one can file a separate motion with the court regarding them. This can include contempt of court or other remedies. If the issue of non-reimbursement is chronic and there are known recurring monthly medical expense for the child(ren), a party could seek a modification of child support to get the monthly amount included into the child support calculation. At that point, the child support enforcement until could assist, as the medical bills are now part of the actual child support calculation. Child support enforcement units will also not assist with other child support related issues, such as getting orders entered regarding payment of activities or dealing with allocation of the right to claim children for dependency exemption purposes. These are issues one will need to deal with on his or her own or with our careful assistance.
The answer to this question depends on the facts of the case. The amount of Colorado child support to be paid, established pursuant to C.R.S. 14-10-115, depends on various factors, including the incomes of the parties, number of children, health insurance and child care costs, and, of course, the number of overnights with the children. Often, people presume that because they have equal parenting time neither of them should have to pay child support. This is just not the case. The primary factor in a child support calculation is income. If the parties truly had almost identical income and there were either no insurance or child care costs, or those roughly offset each other, then the bottom line child support amount might be zero, or negligible. However, if one party makes significantly more than the other, such as $200,000 per year for one party and $50,000 for the other, there will be a child support amount owed based on the disparity of income. Likewise, if the parties have equal income, but one is paying $1000 per month in child care, the child support calculation, and worksheet that is generated, would have the second party compensating the first for his or her half of that child care expense. Thus, there is more that goes into the analysis than just “50/50 time.” Again, child support is based on a formula and, absent a good reason, parties and courts are generally not going to deviate from that formula and the end result amount.
Since January 1, 2014, the child support guideline amounts have gone up. In lay terms, the Colorado legislature amended C.R.S. 14-10-115 by changing the amount reflected in statute that it takes to support a child, or children. In most instances, the amount determined to be needed to support a child went up. For example, in 2008, the amount of support a parent making roughly $100,000 per year would owe for two children, with the other parent making approximately $2000 per month ($24,000 per year) might generate a monthly child support figure owed of $1399. Pursuant to the 2014 amended guidelines, that amount has increased to $1530 per month. Guideline amounts change over time based on inflation and a reflection of the fact that it becomes more costly to meet the day-to-day needs of children. Oddly, though costs have gone up, incomes for most people have not. Using the example above, in 2008, the guidelines indicate that parties making a combined income of $124,000 per year, or $10,333, would have a combined support obligation of $1735. 96 per month, which is split between them proportionate to their incomes. The 2014 guidelines indicate a combined monthly support obligation of $1897.94. Thus, the payer’s monthly child support obligation is $130 higher in 2014 than it would have been in 2013. C.R.S. 14-10-115 does indicate that the change in guideline amounts, standing alone, is not a basis to seek a modification of child support.
Generally, the answer to this question is, “yes.” Statute requires that if health insurance is available at a reasonable rate, one of the parties must provide such for the children. The monthly cost for covering the children’s health insurance needs is one of the figures generally added into a child support calculation. As people split up, or divorce, and move on, they often remarry. As people remarry, situations can arise in which the person required, under court order, to provide health insurance, has a new spouse who may be able to provide it for less, or may be able to provide it should the obligor lose his or her job and the ability to provide coverage. Statute does not prohibit a party required to provide health insurance for the children from obtaining such through his or her new spouse. The law, and Denver area divorce courts, recognize that families evolve and that the end goal is meeting the children’s needs, regardless of who might be the actual policy holder on an insurance plan. Of course, a new spouse’s plan should be similar in coverage to a prior plan. Additionally, the other party’s insurance options should be looked into as well. So long as there is adequate coverage, less cost for monthly premiums will ultimately mean monetary savings for both parties.
Generally, the answer is, “no.” Colorado child support statutes center on the norm, which is usually public schools. In a joint decision-making situation in which people share joint legal custody, each has veto power as to major decisions. Thus, for a child to attend private school, the parties must agree. Even in a situation in which one parent has sole decision making, a court is not going to force the other to pay for private school, absent a provable agreement between the parties or vast financial resources.
However, there are instances in which a court will order that children attend private school and that the cost be split equally. We have seen instances in which the children attend private school prior to the time the parties separate and file a case. In such instances, assuming there are adequate financial resources for such, a court will generally order that the children remain at their private school(s) and that the parties split the cost proportionate to income. In such instances, the party paying, or both parties, will be allowed to include what he or she pays for private schooling as an “extraordinary expense” on the child support worksheet. Inclusion of this cost can lower or raise child support, depending upon whether the payer or payee is paying for school.
Child support in Colorado is generally established pursuant to C.R.S. 14-10-115. In most instances, judges will view adherence to the child support guidelines set forth therein as mandatory. Additionally, many judges view child support as purely for the child, and not something to be diminished by the parents. The public policy consideration regarding this issue relates to the idea that if children are not adequately supported, they may ultimately end up on public assistance. As such, most judges take the position that absent a significant reason, the guidelines will be followed. Our firm has seen instances in which people agree to no child support or lesser child support, only to have a court decline to accept the agreement. If parties to a divorce or child support case wish to agree to a lesser amount, they must present a good reason to the court. C.R.S. 14-10-115(8)(e) allows a court to deviate from the guideline amount if application of the guidelines would be “inequitable, unjust, or inappropriate.” In a situation in which the parties are fighting over a child support amount, there is almost no chance of the court ordering a lesser amount. However, if parties are able to agree to a lesser amount and present a valid reason for such to the court, courts will generally sign off on that agreement. For example, if the guideline child support amount is $1000 per month, to be paid by the father, but the parties agree to no child support, or lesser child support, because he is paying $2000 per month for private school, the court is likely to accept the agreement. Each case and set of circumstances is different and must be assessed as such by an attorney. There is no black-and-white rule as to when a court will accept a lesser amount and when it will not.
Yes. In this fluid economy and job market, it is more common than in the past to see one parent or the other leaving Colorado for work or personal reasons. In light of such, Denver custody lawyers are faced with two issues: establishing visitation reflecting one parent being out of state and the issue of travel costs. Pursuant to C.R.S. 14-10-115(11)(a)(II), “any expenses for transportation of the child, or the child and an accompanying parent if the child is less than twelve years of age, between the homes of the parents” shall be split proportionate to income. Courts are not concerned with which parent moved away and will not require that parent to pay all the cost of transporting the child for visitation because of his or her decision. At the same time, courts will generally import reason into any order regarding travel costs. Plane tickets can be expensive. Courts recognize this. As such, courts will generally try to fashion orders such that there are a few visits a year for which the parties split the cost, such as Summer Break, Winter Break, and Spring Break. Courts are generally not going to order the splitting of the cost for monthly visitation, as they recognize the general inability for most people to pay such an expense. Technically speaking, transportation expenses could also include the cost of gas. It is highly unlikely to see a court order gas costs to be split in cases in which people are traveling within the Denver metropolitan area. However, if one party is in Parker and the other in Grand Junction, it would be appropriate for a court to order the cost of gas to be split. As per statute, with younger children, the court can also order the splitting of the cost for a parent to travel with that child. Little children cannot fly alone and most parents are not comfortable with a five or six-year-old traveling as an unaccompanied minor. As the cost of airfare, or gas, can fluctuate, it is uncommon for courts to order that a specific amount be put into a child support calculation. Rather, orders will generally reflect one party incurring the cost of transportation and the other reimbursing him or her within a specific time frame.
Yes. C.R.S. 14-10-115 lays out what specifics items are going to be included as income for child support calculation purposes. Said statute makes no distinction between “salary” and bonuses or commission. In variably, the statement following this question is going to be, “my bonus is not guaranteed.” Courts recognize that bonuses or commissions may not be guaranteed. Courts also recognize that they can fluctuate based on industry trends as well as changes in compensation policies handed down by the employer. In most situations in which a party to a child support case receives bonuses or commissions, a court will likely do an average. There is no set rule on the time frame leading to the average figure. One can expect a 3 to 5 year assessment. Depending on the circumstances, your attorney may wish to shorten or lengthen the period assessed. There are some caveats. In a situation in which bonus or commission can be tracked on an increasing scale, the other party may argue that really the most recent year should be looked at, as it is likely the increasing pattern will continue. Conversely, the party in question may ask the court to look at the most recent year if his or her income is on a clearly declining slope. Again, there is no set rule and outcomes may depend on the personal beliefs of the judge.Source: www.plogsteinlaw.com