If you are the parent paying child support and alimony in a divorce, we hope you understand how important it is that you stay up to date on your payments. While you may be separated from your spouse, your child or children are still your financial responsibility and the courts have several avenues to require you to make your child support payments.
With that said, circumstances do change and sometimes unexpectedly. The courts are aware of this fact and will try to accommodate any resulting requests to change your payments.
If you must decrease your payments, act quickly. Do not wait until you’ve fallen behind on your payments before you file a modification to reduce your child support or alimony payments in your case. The amount you owe will not retroactively decrease and does not disappear with bankruptcy. As soon as your circumstances change, begin the process of modifying your payment order. But understand that the courts will seldom allow a retroactive change; everything begins from the date that the petition for modification is filed.
What’s the Difference Between Child Support and Maintenance/Alimony?
To begin with, child support and maintenance (formerly known as alimony) are not the same thing. They are two different payments determined in different ways. Child support is money to be used for the express purpose of child-rearing expenses such as food, clothing and shelter. Maintenance, sometimes called spousal support, allows the recipient of the payments to maintain the same standard of living after the marriage is over. While maintenance is not a given, you can expect to see it applied in cases when the loss of income from one parent will drastically change the quality of life in the custodial parent’s home.
Additionally, maintenance is taxable while child support is not. Generally, payments are deductible by the person paying them and they are taxable income to the person receiving them. Child support payments, on the other hand, are neither deductible by the payer nor income to the recipient.
Decreasing Your Payments Through Changed Circumstances
You can modify your payments using several different methods, but the most common and least litigious is to change your payments due to changed circumstances. This is about as simple as it sounds: when your situation has changed since the initial child support and spousal support payments were set, you can apply to have the payments adjusted.
Involuntary unemployment or reduction in income
Sometimes the unexpected happens and you are let go from your job. Whether it happens as a result of workforce cutbacks or your own performance, if you are fired from your job, you can ask to have your payments modified. The same holds true if your pay is cut at work.
Please note that you cannot ask for modified payments if you voluntarily leave your company. If you quit your job, no matter what the reason, you are still accountable to maintain the same monthly payments that you did when you were employed. So be sure that you if you are considering leaving your job, you have enough saved up for not only your own support while between jobs, but also for your child support and maintenance payments.
Disability is just as undesirable as unemployment for all parties involved. A sudden disability can wreak havoc on your life and affect your ability to afford your current support payments.
Whether your income is decreased due to an inability to work or mounting rehabilitation costs, disability affects your ability to pay. It is important to have your support payments modified as soon as possible, so that the payments don’t pile up on top of medical bills.
If you are injured or disabled, avoid adding financial distress to your list of worries. Don’t let too much time go by before you apply to adjust your child support and/or maintenance payments.
Increase in former spouse’s income
Not all reasons for decreasing your child support and/or spousal support payments are negative. If your former spouse gets a substantial raise or a new, better-paying job, then you can ask for a modification in your payments.
While added income is always great news, this situation should be handled with care with the custodial parent. Strong demands for a reduction in payments will likely be met with an equally aggressive denial. Yes, you can take the matter to the courts, but the responsibility falls to you to prove that your former spouse’s additional income is enough to replace the payments you’re making. If your ex will not agree to a modification, then you must file the petition as soon as possible, as the change is not retroactive.
A civil discussion between you and your ex can go a long way in helping you reduce your monthly payments.
Increase of income due to cohabitation
Payments from the noncustodial parent can also go down when the custodial parent has a significant other move in and contribute in a substantial way to the household and child care costs, depending on how the separation agreement was written.
Once again, this can be a slightly tricky topic to broach with your former spouse, so tread lightly and try to manage the arrangement as delicately as possible. The burden of proof that the new income is enough to warrant a decrease in payments is largely on the noncustodial parent. If you don’t approach your ex for a civil discussion beforehand, you could wind up costing yourself more than you save.
Decreasing Your Payments Through Custody
Your child support payments and maintenance are not based solely on income. The courts use the amount of parenting time you have with your children as one of the variables in the formula for establishing your payments.
File for modification based on change of parenting time
One way to decrease your child support and/or maintenance payments is to increase your parenting time, which can be a doubly positive situation. Develop a new parenting time schedule and discuss it with the custodial parent. If you can come to an agreement on increased time spent with your children, you not only get to see your children more, you can also file for modification of your child support payments since you are directly responsible for them while they are at your home.
Teenage children have a larger say in which parent they live with. If they decide that they would prefer to live with you, you can file to modify your support payments based on the change in custody.
Terminate support for children who are no longer minors
In Colorado, once your child turns 19 they are no longer considered a minor and therefore no longer eligible for child support. If your child turns 19 during the middle of his or her senior year of high school, the courts will likely require you to continue payments until they graduate.
It is worth noting that Colorado has an exemption that extends child support payments for adult children with physical or mental disabilities. If these children are unable to support themselves, both parents must continue to offer them financial support.
Colorado law is complex. If you have a disabled child, talk to your lawyer to get more insight into the state regulations
Decreasing Your Payments Through Mediation
If you have unique circumstances that are not covered by the standard provisions for changing your support payments, you can hire a mediator to help you and your former spouse come to a mutually agreeable support payment.
Unless your divorce was extremely amicable, using a mediator when dealing with the specific details can help you both through these decisions. These trained and experienced professionals can help you and your ex navigate contentious topics like children, money and significant others, without escalating the discussion into a confrontation.
Keep in mind that a mediator’s objective is to reach a settlement. This is important to consider because while mediators do have formal training, they are not bound to reach an equitable agreement and are subject to persuasion and strong personalities. You will still need to advocate for your best interests or have your attorney in the room to help.
Decreasing Your Payments Through Litigation
Many of the items that must be divided in divorce carry with them extreme emotions, which can cause couples to bristle quickly. A professional, experienced attorney will represent your best interests and create a buffer for some of the more volatile topics, like support payments.
Hire an attorney to fight for the lowest possible payments
As your lawyers, we use our knowledge of divorce law to minimize your child support and maintenance payments, and maximize the time you get to spend with your children. Lawyers are more familiar with the formulas used to calculate support payments, and we will work with you to ensure the most favorable outcomes.
Prove your spouse is underemployed
Proving that your former spouse is underemployed can be a very difficult task which is why it is important to have the help of a lawyer. You may need to provide some of the necessary evidence and paperwork, but we will work to demonstrate that the custodial parent could be earning more than they currently are and request that the court attribute income to them. Your attorney may need to call a vocational/career expert witness to provide testimony on salary expectations for their job in order to reduce your monthly payments. The experienced professionals at Robinson & Henry can help guide you through the process.
We understand that one of your priorities as a parent is supporting the welfare and growth of your children, both financially and emotionally, and we will keep that in mind as we fight for fair child and spousal support payments. However, you should not be forced to pay support that limits your ability to support your own welfare and growth. If you are looking for an attorney to represent your case, call us at 303-688-0944.