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Many people think that when they divorce that’s it. They are done with the ex-wife or ex-husband. He or she is out of life for good and each is free to move on to whatever bright future lies ahead. For some couples, this is very much the case. However, if there are children involved in a divorce, plan now to have contact in one form or another at least until the children reach age 19.
If you are the more financially secure partner in the divorce, you can expect to pay child support in Colorado. Child support is the ongoing, regular payments made by one parent to another for the financial well being of their child or children. You can be liable for child support even if you were not married to the child’s mother. If paternity is proven, an attorney can (and very likely will) seek some amount of financial support for the child.
Even if a non-custodial parent has no desire to have a relationship with the child, he or she can still be liable for child support in Colorado. That’s because the law holds that a child’s rights to support outweigh an adult’s wishes for complete financial independence from the family.
Money given as child support is to be used strictly for care of the child, including such things as food, clothing, educational expenses, housing, extracurricular activities, etc. The law does not require the parent paying child support to pay for college unless the parent has signed a separate agreement establishing such an obligation. Colleges do typically consider both parents’ income in determining eligibility for financial aid. A parent (and even a new spouse who has no blood relationship with the child) may be ordered to include the child on a medical health plan.
How is Child Support Determined?
In Colorado the courts rely primarily on a software program to determine how much child support a non-custodial parent can expect to pay to the custodial parent. The program requires a couple to feed in data such as:
- The incomes of both parties in the divorce
- The number of children
- The number of overnights the non-custodial parent will have with the child
- Daycare costs
- Health insurance costs
As a general rule, needs of the child are not issues argued in court except in very rare circumstances. A non-custodial parent can expect to pay child support from the date of the filing of the divorce case or from the date divorce papers were served.
The goal of child support is to allow the children of the dissolved marriage to continue to be supported in the same way they would have been if the parents had stayed together.
What if I Can’t Afford to Pay Child Support?
Once the court has determined the amount of child support a parent is expected to contribute each month, the non-custodial parent must rearrange his or her life to be able to afford to meet this obligation. A parent cannot get the amount of child support changed just because his or her bills have increased from buying a new home or car. The court can consider all of the following to find funds to help you meet your obligations: wages or salaries, tips, overtime pay, pensions, workers’ compensation, unemployment benefits, and social security benefits.
If a non-custodial parent has remarried, the new spouse’s earnings are not included in child support arrangements for offspring from a spouse’s previous marriage. As stated before, the one exception is the potential requirement that the new spouse include the child on his or her health insurance.
Can the Amount of Child Support Be Changed?
If circumstances change, on either end of the equation, the amount of child support required can be adjusted. The circumstances must have changed in a substantial way and be permanent or at least will exist for a continuing period of time. If the change isn’t permanent, it should at least be something that lasts a period of months or years.
If a non-custodial parent has lost a job, encountered enormous medical expense, taken on the support of other children, or experienced some other hardship that has altered the financial picture substantially, it may be worth bringing it to the court’s attention and seeking an adjustment.
Likewise, if a non-custodial parent’s fortunes change dramatically for the good, it is also possible for the custodial parent to seek additional child support.
Modification of Child Support
A Colorado court will modify an existing Child Support Order if:
- There has been a substantial and continuing change in circumstances, and
- The change amounts to at least a 10 percent increase or decrease in the current child support amount, or
- The current Child Support Order does not contain provisions for medical support, including insurance coverage, medical insurance deductible co-payments, or reimbursable medical expenses.
While the parties to a divorce may specify that the terms of the Separation Agreement cannot be modified without the agreement of both parties, modification of a Child Support Order cannot be precluded.
The main issue in a Motion to Modify Child Support is what amounts to a “substantial and continuing change.” The burden of proving the “substantial and changed circumstances” is on the party seeking the modification.
Examples of what has qualified as a substantial and continuing change include:
- A permanent increase or decrease in one or both parties’ income,
- The emancipation of one or more children for whom child support has been ordered.
- The non-custodial parent’s reasonable and necessary business expenses,
- Increased income from sale of business,
- Inflation, if when taken into consideration, would result in at least a 10 percent change,
- Post-decree inheritance,
- Post-decree lottery winnings,
- Loss of employment and increased medical expenses due to medical condition,
- Child support ordered for subsequent children, unless modification would result in less total child support obligation,
- The child’s increased needs, including educational expenses, and
- The valid marriage of a minor child, which results in emancipation.
Examples of what has not qualified as a substantial and continuing change include:
- Temporary loss of employment,
- Voluntary unemployment,
- Voluntary increase of expenses, such as the purchase of a new house,
- Incarceration by itself may not be enough to justify modification,
- Death of supporting parent unless otherwise agreed or expressly provided in Decree, and
- Increased financial obligations due to re-marriage.
If a minor child marries, the child support obligation for that child is terminated, as marriage results in immediate emancipation. However, marriage involving a minor child is voidable under Colorado state law. If the marriage is declared invalid, or annulled, then the child support obligation is revived.
The supporting parent is not held responsible for child support during the length of the voidable marriage.
What if I Just Stop Paying?
If the parent responsible to pay child support stops paying child support, the amount owed doesn’t just go away. It keeps adding up and becomes known as an “arrearage” that carries a high rate of interest. If this situation arises, it is entirely possible for the ex-spouse, their attorney or even the department of social services to pursue the payor parent for the arrearage. The State could take a parent’s tax refund or private counsel may to arrange for liens on bank accounts and property (such as cars and houses). In addition, the state can seize the offending parent’s driver’s license and add a negative entry on the parent’s credit report. Upon request, the Court can even Order the payor parent’s employer to withhold child support funds and forward them to the Family Support Registry. Finally, if the payor parent files for bankruptcy, the amount owed in arrears typically cannot be discharged. It stays with the parent until it is paid in full.
Seek Legal Advice
If you are facing a divorce involving children in Colorado, call the well-experienced, knowledgeable family law attorneys at Robinson & Henry in Castle Rock, Colorado. We serve clients throughout Douglas County, Castle Rock, Highlands Ranch, Centennial, and the entire south metro Denver area. We are well familiar with the intricacies of divorce, child custody, and child support in Colorado. In addition, we are excellent mediators and negotiators, representing our clients’ interests in court and around the negotiation table. Call 303-688-0944 and ask to speak to one of our family law attorneys at the Robinson & Henry Castle Rock or Denver office. Initial consultations are available at no cost and with no obligation.