There is a certain amount of relief that comes once your divorce is finalized. While you may enjoy that peace of mind for a while, there may come a time where modifying custody and alimony are necessary.
Circumstances change. Perhaps your ex is remarried, your income has dramatically changed, or you feel your child is old enough to spend more time at your home. When these situations arise, modifying child support and alimony can become necessary.
What is a Modification After Divorce?
Simply put, a modification is a change to the divorce ruling. Some orders are more difficult to change than others. Modifying custody and alimony are possible. That request to modify, though, comes with a burden of proof. That means it’s on you to justify to the court why it should approve your request to modify the previous arrangement.
When to File for a Modification
A request for modifying custody and alimony is filed when circumstances change considerably. It is important to be precise when filing requests for modification. Incorrect applications will be denied by the court.
Also, be aware the court has an inclination to deny any modification request that does not have very strong supporting evidence.
Five Common Types of Modification Requests
Modification of Maintenance
In Colorado, spousal support is called maintenance instead of alimony. However, they’re all one and the same. Alimony does not include child support payments.
Most maintenance payments are designed to be temporary. This temporary spousal support is provided for a short period of time while the receiving spouse looks for a job or receives occupational training.
There are situations where maintenance will continue longer or possibly indefinitely, such as when the divorcees are older or one has significant health issues preventing them from working.
How Maintenance is Awarded in Colorado
In the state of Colorado, a family law judge determines if maintenance is appropriate and, if so, how much and for how long.
Amount of Alimony
The amount of maintenance is equal to 40% of the higher income earner’s monthly adjusted gross income, minus 50% of the lower-income earner’s monthly adjusted gross income. When the alimony amount is added to the gross income of the recipient, he or she cannot receive more than 40% of the couple’s combined monthly adjusted gross income.
Length of Alimony
The length of alimony is based on the number of months of marriage and ranges from 11 months for a marriage lasting three years to 10 years for a marriage lasting 20 years. see chart in C.R.S. 14-10-114
For marriages that lasted longer than 20 years, the court has discretion on how much and for how long alimony will be awarded. In some cases, alimony can be granted for life, only to be rescinded upon death or remarriage.
Request for Alimony Modification
Either spouse may apply for maintenance modification. You may request to prolong or shorten the time paid or to increase or decrease the payment amount.
As previously mentioned, the petitioner needs ample evidence for the request based on financial circumstances.
Here are some examples of evidence for a modification:
- a verified significant decrease in the recipient’s income or their earning ability
- a justified increase in their financial obligations and responsibilities
- a delay in the improvement of the recipient’s economic condition or prospects
- unavoidable loss of financial assets from fire, flood, or fraud
You will need extensive documentation. So make sure to begin tracking the situation as early as possible.
Gather copies of income statements, bank statements, tax documents, and other paperwork to provide background and support for your request to modify.
Modification of Child Support
Child support payments are more flexible than other modification requests. Colorado Revised Statute §14-10-122 sets the standard for modification of child support. It states that the change must be substantial and continuing.
The law also allows for the amount of the child support order to increase or decrease by as little as 10 percent, but it must be at least a 10 percent change.
Reasons to modify existing child support may include:
- an adjustment in the cost of raising a child, such as daycare charges and health care costs
- an income fluctuation with one or the other parent
- one of the children has emancipated or turned 19 years old
- medical and, or dental support was not included in the original order
- there has been a change in the number of overnight visits the children have with one of the parents
Note that a change in expenses on the part of a custodial parent does not set the stage for a child support modification. For instance, purchasing a new car or house is generally not a child support cost that would change the current assessment.
Modification of Parenting Time
Widely known as custody or visitation, parenting time is the name given to these in Colorado. A separating couple decides on a parenting time arrangement and submits it to the court for approval.
Parenting time and responsibilities in Colorado outline where the child or children will reside, typically with one parent. The other parent gets parenting time allocated according to the age of the child, with younger children tending to spend more time with the parent they live with for stability.
In all cases, the deciding factor for the court is what situation is in the best interests of the child.
If situations change, the parenting plan may be restricted, increased, or modified as long as the changes are shown to benefit the child.
The best-case scenarios involve parents living close to each other and close to the school the child attends. This allows for minimal disruption with regard to school and extra-curricular activities.
Parenting time gets difficult when one parent must move for a job that places them an hour or more away from the home close to the child’s school.
In this instance, custody is typically modified to have the child live with one parent most of the time with the other parent agreeing to a schedule that has the child visit during school breaks.
Other situations that may lead to the modification of parenting time:
- abusive behavior from one parent toward the child
- a situation that puts the child in danger, physically or emotionally
- parental alienation
However, these situations, as with all parenting time modifications, must be approved by the court. There is no legal standing for “handshake” agreements reached only between the parents.
Modification of Decision-Making Authority
Much like the old labels alimony and visitation, the term joint custody in Colorado has been replaced by parental responsibility.
A subset of parental responsibility is decision-making authority. Will major decisions be made together or by one parent.
Major decisions include:
- where the child goes to school
- what religious institutions they attend
- medical needs
- activities such as sports, clubs, or work
It’s important to note that most day-to-day decisions, like what the child eats and disciplinary actions, are made by the parent the child is with at the time.
Decision-Making Authority is Tough to Modify
In Colorado, parental responsibility is frequently awarded jointly. However, once decided upon by the court, decision-making authority is very difficult to change.
The parent motioning for sole decision-making authority must show that the decisions made by the other parent will cause or are causing danger to the child’s physical or emotional health.
If the court is not convinced there is sufficient cause to even hold a hearing to change decision-making authority, then the motion will be denied.
Moving Out of State with a Child
In order for a parent to move out of state with a child whom they share parenting time and decision-making authority, the moving parent must notify their ex in writing.
The statement must include the intent to move, details about the new proposed home location, an explanation for the request to move the child, and a detailed plan for a new, modified parenting time proposal.
In accordance with Colorado Revised Statue § 14-10-129, the court considers nine factors in its decision:
- why the party wishes to relocate with the child
- why the opposing party objects to the proposed relocation
- history and quality of each party’s relationship with the child since any previous parenting time order
- educational opportunities for the child at the existing location and at the proposed new location
- presence or absence of extended family at the existing location and at the proposed new location
- advantages of the child remaining with the primary caregiver
- the anticipated impact of the move on the child
- whether the court can fashion a reasonable parenting time schedule if the change requested is permitted
- considerations of conditions where the mental or physical well-being of the child is in danger
Modifying Custody and Alimony
The courts are aware that divorce decrees may need adjustments from time to time and the laws reflect that awareness too.
Where child support payments can be relatively easily modified needed to address the needs of a child relatively quickly, changes to decision-making authority are purposely near-unwinnable because it’s the position of the state that parenting remains a shared responsibility.
Having an experienced attorney on your side is almost a necessity for post-divorce modifications because of the complexity and nuance of filing the motions and navigating the case precedents.
The court typically prefers divorced parents to work out the details and then bring the petition to the court to simply sign off on them.
While some modifications will be resolved through mediation or negotiations, other situations will be hostile and require the court’s involvement.
Talk with an Experienced Modification Attorney
No matter what modification you wish to make, consult your attorney to get their take on your chances of success and how next to proceed.
Being as prepared as possible when modifying custody and alimony will help keep you on an even keel. It will also give your case more substance.
We encourage you to contact us at 303-688-0944 for a free initial consultation or click here to make the appointment yourself.