Our Colorado parenting time attorneys discuss how to change your parenting and alimony in Colorado
There is a certain amount of relief that comes once your divorce is finalized. You’ve worked through the issues and whether the decisions seem fair or tolerable, and you’re just happy that it’s all been decided.
Enjoying that peace of mind for a while is great, but there may come a point where either your situation or your ex’s situation changes and you need to request a modification of one or more of the divorce arrangements.
Simply put, a modification is a change to the divorce ruling. Some orders are necessarily more difficult to change than others. Parenting time (child custody agreements) or maintenance (alimony) payments are amendable, but with the request to modify comes the burden of proof. That means it’s on you to justify to the court why you’re asking for a change to the previous arrangement.
When to File for a Modification
A request for modification would be filed when circumstances change considerably. It is important to be precise when filing requests for modification because incorrect applications will be denied by the court. Also be aware that the court has an inclination to deny any modification request that does not have very strong supporting evidence. In the next sections, let’s take a look at five common types of modification requests.
1. Modification of Maintenance (alimony)
Spousal support in Colorado is called “maintenance” instead of “alimony” and does not include child support payments. Most maintenance payments are designed to be temporary, only allowing to provide for a short time while the spouse receiving support gets training or looks for work. 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.
Either spouse may apply for maintenance modification, requesting to prolong or shorten the time paid, or to increase/decrease the amount. As previously mentioned, the petitioner will need to provide ample evidence for the request based on financial circumstances. For an increase in payments, here are some examples of what the claim will need to show: verification of a 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. For a reduction in payment amounts, the converse of these examples will need to be shown. An unavoidable loss of financial assets (fire, flood, fraud) may also qualify as cause for an increase or decrease in payments or duration.
Extensive documentation will need to be presented, 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 filing.
2. 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 as the change must be “substantial and continuing.” It 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. Significant reasons to modify the existing child support claim may include:
- An adjustment in the cost of raising a child (day care charges, health care costs, etc.)
- An income fluctuation with one or the other parent
- One of the children has emancipated (is providing for themselves or turns 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 child support modification. A new car or home is generally not a child support cost that would move the current assessment.
3. Modification of Parenting Time (custody arrangements)
Widely known as child custody or visitation rights, “parenting time” is the name given in Colorado to a plan that the separating couple decides on and submits to the court. 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 get 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 be of benefit to the child. The best-case scenarios involve the parents living close to each other, both close to the school the children attend, which would cause minimal disruption with regard to school and extra-curricular activities. Parenting time gets difficult when one parent must move for a job, placing them an hour or more away from the home close to the child’s school. In this instance, the parenting schedule is typically modified to have the child live with one parent most of the time with the other parent agreeing to a modified schedule that may see them have more time on school breaks than during the week.
Obviously there are other situations that may lead to the modification of parenting time, such as abusive behavior from one parent toward the child or a situation that would put the child in danger, physically or emotionally. 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.
4. 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, wherein the parents either make child-rearing determinations jointly, or one parent (typically the one who runs the home where the child lives) has sole discretion. This includes the ability to decide where the child goes to school, what religious institutions they attend, medical needs, and any other activities including sports, clubs or work (for older children). (It’s important to note that most day-to-day decisions – what the child eats, disciplinary actions, etc. – will be made by the parent the child is with at the time.)
In Colorado, parental responsibility is frequently awarded joint authority with both parents. 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 that there is sufficient cause to even hold a hearing to change decision-making authority, then the motion must be denied.
5. 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 their intent to move, along with details about where their new proposed home will be located, an explanation for the request to move the child, and a detailed plan for a new, modified parental time proposal.
In accordance with Colorado revised Statue § 14-10-129, the court then considers nine factors in its decision:
- The reasons why the party wishes to relocate with the child
- The reasons why the opposing party is objecting to the proposed relocation
- The history and quality of each party’s relationship with the child since any previous parenting time order
- The educational opportunities for the child at the existing location and at the proposed new location
- The presence or absence of extended family at the existing location and at the proposed new location
- Any advantages of the child remaining with the primary caregiver
- The anticipated impact of the move on the child
- Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted as well as considerations of conditions where the mental or physical well-being of the child is in danger.
Recap & Conclusion
The courts are aware that divorce decrees may need some 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 remain 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. Some modifications can be resolved through mediation or negotiations through the attorneys of each spouse, and sometimes the situation is hostile. The court typically prefers situations where the divorcees are able to work out the details and then bring the petition to the court to simply sign off.
No matter what the 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 before seeing your spouse or the court will help keep you on an even keel and give more substance to your case. We encourage you to contact us for a free, no obligation consultation at (303) 688-0944.