Determination of Child Support in Colorado
By: Joo Y. Park, Esquire
All parents, whether married or not, owe a duty of financial support to their children who are under the age of 19 or still in high school, or disabled. When the parents are no longer together, the law still requires them to continue to provide financial support to their children. This is called “child support”.
The court determines child support by considering the following:
In calculating child support, the court must first determine each parent’s “gross income”. Gross income, for purposes of determining child support (as well as spousal maintenance) is not the same as the definition of “gross income” provided by the Internal Revenue Service. The definition of gross income under the Col. Rev. Stat. §14-10-115(5)(A)(I) includes, but is not limited to: wage; salary; commissions; dividends; rental income; alimony/spousal maintenance received; pension and/or retirement benefits; monetary gifts; social security benefits; disability benefits; and etc. Courts require documentation verifying the parents’ gross income, including but not limited to W-2, federal and state tax returns, 1099, year-to-date paystubs, etc.
Gross income does not include various benefits received through public assistance programs, such as certain social security benefits received by or on behalf of the child. Although retirement distributions fall into the definition of gross income, retirement earnings or gains are not. Child support payments for children from another relationship are also excluded. Spousal maintenance payments are excluded from the payor’s gross income, while the same are included in the recipient/payee’s gross income. See Col. Rev. Stat. §14-10-115(5)(A)(II).
For those parents who are self-employed, there will be an extra layer of scrutiny over their “business expenses”. Any personal expenses treated as business expenses will be added back as income. In addition, any reimbursements received that reduce a parent’s personal expenses will also be added back as income subject to support calculation.
2. Potential Income
If a parent is voluntarily unemployed or underemployed, child support must be calculated based on the parent’s potential income. However, a parent may not be considered voluntarily unemployed if he or she is physically or mentally incapacitated. See Col. Rev. Stat. §14-10-115(III)(b)(I).
A parent who is employed but is earning less than he or she is capable of earning will not be deemed underemployed if:
(A) The employment is temporary and is reasonably intended to result in higher income within the foreseeable future; or
(B) The employment is a good faith career choice which is not intended to deprive a child of support and does not unreasonably reduce the support available to a child; or
(C) The parent is enrolled in an educational program which is reasonably intended to result in a degree or certification within a reasonable period of time and which will result in a higher income, so long as the educational program is a good faith career choice which is not intended to deprive the child of support and which does not unreasonably reduce the support available to a child. See Col. Rev. Stat. §14-10-115(7)(b)(III).
In determining whether a parent is voluntarily underemployed or employed, the court will consider all circumstantial facts, including but not limited to: firing and post-firing conduct; the amount of time the parent spent looking for a job of equal caliber before accepting a lower paying job; whether the parent refused an offer of employment at a higher salary; whether the parent sought a job in the field in which he or she has experience and training; the availability of jobs for a person with the parent’s level of education, training, and skills; the prevailing wage rates in the region; the parent’s prior employment experience and history; and the parent’s history of child support payment. See People v. Martinez, 70 P.3d 474, 481 (Colo. 2003).
3. Basic Child Support Guideline
Once the court has determined both parents’ gross income or earning potential, the court will look to the Colorado Child Support Guideline, to determine the parents’ child support obligation. For example, under the Colorado Child Support Guideline, two parents whose combined monthly gross income is $6,000 owe a combined child support obligation of $920 if they have one child; $1,404 if they have two children; $1,696 if they have three children, so on and so forth. Parents’ combined child support obligation will vary in accordance with their combined income and the number of children between them. Each parent’s obligation is determined in proportion to each parent’s adjusted gross income and their parenting time, as well as other variables discussed below. Keep in mind that child support does not go up or down dollar for dollar with the parents’ incomes. Thus, just because a parent’s income goes up by $500, that does not mean the child support obligation increases by the same amount. It should also be noted that child support for multiple children does not get divided by the number of the children. For example, where there are three children subject to child support, if one of the three children becomes emancipated, it does not mean that the child support obligation becomes 1/3 less. See Col. Rev. Stat. §14-10-115(7).
The court may deviate from the guidelines if application would be inequitable, provided the court makes specific findings regarding the reasons such deviation is warranted. See Co. Rev. Stat. §14-10-115(3)(a); see also In re Marriage of Ford, 851 P.2d 295 (Colo.App.1993).
4. Parenting Time
Child support obligation can vary pending how much parenting time each parent exercises. Where a parent spends less than 93 overnights a year with the children, the other parent is deemed to have sole physical care of the child. However, where a parent spends more than 92 overnights a year with the children, such parent is deemed to have shared physical parenting time and there will be an adjustment reflecting the parenting time spent with the children. When parenting time is nearly equal, each parent’s obligation will be offset against each other and the parent with the greater support obligation will owe child support to the other parent. See Co. Rev. Stat. §14-10-115(8)(a)-(b).
Where there is more than one child and each child spends a different amount of time with each parent, the child support calculation will incorporate the parenting time spent with each parent. See Co. Rev. Stat. §14-10-115 (8)(c).
5. Children’s Expenses
Some of children’s expenses will also affect the parents’ child support obligation. Those expenses include childcare costs (due to either parent’s work schedule or academic pursuits), health insurance premiums, and extraordinary medical expenses (including but not limited to co-pays, reasonably necessary treatments for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, psychiatric therapy and counseling, etc.). In addition, the court may also consider any special or private education expenses as well as cost of transportation of the child needed to transport the child between the parents’ homes. The court will consider any additional factors by agreement of the parties or on its own discretion if such factors diminish the basic needs of the child. These expenses will be added and incorporated into the child support calculation and will be shared by the parents. See Co. Rev. Stat. §14-10-115(15)(c).
Child support calculations can become complicated where there are multiple children’s expenses and the parents dispute the validity or necessity for such expenses. For example, while one parent may consider horseback riding lessons to be crucial and necessary for the child, the other parent may disagree. For a comprehensive child support calculation or a review of any existing child support order, you should consult an attorney before appearing in court.
College or any other post secondary expenses (i.e. expenses associated with education programs following high school) will not be ordered by the court unless there is a written agreement by the parents and the court approves the same. However, child support orders entered between July 1, 1991 and July 1, 1997 which might have included post secondary expenses, may be modified pursuant to Co. Rev. Stat. §14-10-115(15)(c).
7. Modification of Child Support
A parent may seek to modify his/her child support obligation only upon showing of a substantial and continuing change of circumstances. For example, a loss of income due to involuntary unemployment, or increase of income due to change of employment or promotion, constitute are typical change in circumstances that warrant modification of child support. However, if the difference in the new child support order is 10% or less, then the change(s) in circumstances will not be considered substantial or continuing. See Co. Rev. Stat. §14-10-122(1)(b).
* Please note that all information contained herein is general and should not be considered as customized legal advice for you. Should you have any questions regarding your case, please call our office at (970) 340-4977 to schedule a consultation with attorney Joo Y. Park.