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Once your divorce is concluded, you may think that’s the end. However, a significant portion of the services Robinson & Henry attorneys provide for clients concern modifications of child support and visitation arrangements that take place in the years after a divorce is finalized. The reality is, the court retains its jurisdiction over your children’s custody and financial well-being until they reach their 19th birthdays. You may wish to modify arrangements after your Colorado divorce is finalized for one or more of the following reasons.
“Modifying Child Support in Colorado”
In this article you will learn about the following topics:
- Whether a child support order can be modified in Colorado
- The factors the court considers when deciding whether to order a modification
- How to enforce a child support order
- How Robinson & Henry can help you through this process
Modifying Child Support in Colorado
At Robinson & Henry one of the most common questions we are asked by our clients is whether they can change their current child support order, and what the process would be to request such a change. Child support orders can be changed in Colorado in accordance with C.R.S. § 14-10-122. In order to make a change, a court must find that there has been a “substantial and continuing” change since the last order. The court can also make a change if the parties failed to include provisions addressing medical support, for example if the parties did not designate who will be responsible for medical insurance premiums.
Courts will typically not view a change as “substantial” unless it would result in more than a 10% change in the child support payment pursuant to the Colorado guidelines. At Robinson & Henry we have the latest software to analyze your financial situation and advise you regarding the Colorado Guidelines. If an application of the guidelines would result in more than a 10% change, a rebuttable presumption exists that a modification of child support must be granted. In other words, it will be up to the other party to prove why the change should not be made.
Additionally, the change must be “continuing,” in other words, it cannot be a temporary change. In a Colorado case called McVay v. Johnson, the court denied a request for modification of child support based on the fact that the obligor (the person who is required to pay child support) was unemployed. McVay v. Johnson, 727 P.2d 416 (Colo.App.1986). The court in McVay found that even though the obligor had been laid off, that fact only constituted a temporary change and not a substantial and continuing change as required by the statute.
Another common situation that we see at Robinson & Henry, relates to bonuses from work. We have clients that ask whether a large bonus from their employer would result in a change to their child support. Often the answer is “no” as the bonus is only a temporary increase in income.
Once a motion to modify child support is filed, there is often a large lag time between the date of the filing of the motion and the hearing. At Robinson & Henry, we make sure to request that the court make the change effective back to the date of filing. This allows our clients to recover the funds that they should have been paid while they waited for their court date.
Collecting Child Support After the Modification
Once a modification is ordered, the next step is collection the payments. At Robinson and Henry, we typically request an income assignment for our clients pursuant to C.R.S. § 14- 14-111.5. An income assignment is an excellent way to provide consistent, automatic payments for our clients. In order to activate the income assignment, the obligee (the person receiving child support) or his or her attorney must serve the other party’s employer with a notice to withhold income for support. At Robinson and Henry, we will contact the employer, trustee or other legal payor for the obligor and arrange for service of the required notice.
Many of our clients wonder whether the fact that the other party is already being garnished will affect our ability to activate an income assignment against that person. Child support payments take priority over any other garnishment, lien or attachment. This means that if the other party is being garnished for judgments stemming from unpaid debts, the child support payment will be paid first. Details on the priority of orders from previous domestic cases can be found in C.R.S. § 14-14-111.5(6)(b) and are too complex (and boring) to be addressed in this article.
Once activated, an income assignment is a continuing assignment that remains in effect and
is binding upon any employer, trustee, or other payor of funds upon whom it has been served. It cannot be changed unilaterally by the obligor, and remains in full effect until further notice from the obligee, the obligee’s attorney, or the court. Dealing with parties that are employed by friends or family members can be difficult. At Robinson & Henry, we often have to send letters explaining the law and obligation to the obligor’s employer in order to ensure that the employer complies with the income assignment.
When a court issues an order for child support, that order is enforceable through contempt pursuant to C.R.S. § 14-14-110 and C.R.C.P. 107. Contempt issues are brought as a continuation of the original action and are not a separate proceeding. There are two types of contempt in Colorado, direct and indirect. Direct contempt is the type of contempt you typically see in movies and on television; it is behavior in the presence of a judge that so extreme that no warning is necessary or that has been repeated despite a judge’s warning to stop. Indirect contempt involves behavior that takes place outside the courtroom. Thus, contempt proceedings to enforce orders for child support typically involve indirect contempt.
Additionally, when a party is found to be in contempt, Colorado law provided for two types of sanctions, remedial and punitive. Remedial sanctions are designed to cure the defect as a result of the party’s failure to comply with the court order. Remedial sanctions can be cured simply by the party who is in contempt, or contemnor, coming back into compliance. For example, if the obligor has failed to pay child support, the obligor can avoid remedial sanctions by paying the arrearage.
Punitive sanctions are designed to punish the party who is in contempt. Punitive sanctions cannot be cured by the contemnor coming back into compliance. Punitive sanctions may include fines, incarceration, or both. At Robinson & Henry, we typically seek both types of sanctions and request attorney’s fees from the contemnor pursuant to C.R.C.P. 107(d)(2). While the party seeking contempt is not required to choose between the two types of sanctions, they each have distinct rules for procedure that need to be followed, and having an attorney familiar with both is extremely important.
Child support and maintenance payments that are due and not paid become final judgments pursuant to C.R.S. § 14-10-122(1)(c). As a result, those unpaid payments start accruing interest from the date they are due. Additionally, those judgments are entitled to full faith and credit and can be enforced in Colorado or any other state. If you choose Robinson & Henry to help you with your case, we can file the required verified entry of judgment and other necessary documents with the court to ensure the income assignment is valid and properly served.
Additionally, we can help educate you regarding the possibility of filing liens against the obligor’s personal property. We can discuss the court’s power in some circumstances to deny suspend or revoke professional licenses pursuant to C.R.S. § 26-13-126, or even to offset child support arrearages from tax refunds.
If you are curious regarding whether you can make a change to your child support, or you need help collecting child support, contact me, James K. Townsend at Robinson & Henry at (303) 688-0944 so I can meet with you personally for a free consultation. I can review with you your current child support order, any changes in circumstances, and advise you whether you should request a change.