THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
Divorcing your spouse can come with many difficulties and concerns. In the eyes of the law, however, just four elements compromise the heart of your case. Whether you and your spouse are trying to work together for an uncontested divorce or you are already preparing for a trial, it is important to understand the four main matters at hand. Discussing these issues with your spouse could help you both agree on the terms of the split.
When you and your spouse divorce, the legal status of your properties change. What you used to jointly own may now be you or your spouse’s property. Each state has unique property division laws for divorce cases. Colorado is an equitable distribution state, rather than using the doctrine of community property. If the courts determine property division, they will do so in a way that is fair to both parties. Fair may not mean equal.
You and your spouse will first get the opportunity to decide how to divide property on your own. A judge will most likely sign off on a plan you both agree upon. If you cannot agree with your spouse, the matter may go to mediation or trial. If the issue goes before a judge, he or she will consider factors such as each spouse’s finances, child custody and property values while dividing assets and debts.
Colorado’s phrase for child custody is parental responsibilities. Two types of parental responsibilities exist: physical and legal. Physical responsibilities refer to custody and/or visitation rights, while legal responsibilities give a parent the right to make important life decisions on the child’s behalf. As with property division, the Colorado courts will first allow you and your spouse the opportunity to work out a parenting plan before interfering. A parenting plan should include a detailed schedule of parenting time and rules for decision-making.
If you and your spouse cannot agree on the terms of a parenting plan, the matter may go to trial. A custody battle could involve you and your spouse explaining to a judge why you are each the better fit for the allocation of parental responsibilities. A judge may also consider the opinion of the child if he or she is mature enough to have one. Then, the judge will rule according to the child’s best interest. A judge may look at issues such as each parent’s relationship with the child and which parent can provide the most stable living environment to allocate parental responsibilities.
Child support is separate from parental responsibilities. It refers to one parent’s financial responsibilities to children, often based on the custody arrangement. In most divorce cases involving child support, the courts will grant a support request in favor of the custodial spouse. The noncustodial parent will have to pay a certain amount to the custodial parent to fulfill his or her financial responsibilities to the child. The courts use child support as a way to maintain the child’s standard of living after a divorce, under the belief that a child should not have to suffer due to the actions of the parents. For more information, call an experienced Fort Collins child support lawyer today.
Spousal maintenance, or alimony, is a payment one spouse may have to make to the other, usually temporarily, to maintain the recipient’s standard of living. The Colorado courts may grant a request for spousal maintenance if an income disparity exists between the spouses. If one spouse gave up an education and career to raise a child, for example, the other spouse may have to pay spousal maintenance after a divorce. The courts may issue spousal maintenance temporarily during the divorce, and then order a more permanent setup post-divorce. Spousal maintenance usually persists until the recipient changes financial status or remarries.
Posted in Child Support on May 22, 2019
Once the court issues a child support order as part of a divorce case, its terms are inflexible. The spouse that must make child support payments cannot choose to skip a month or change the support amount without court approval. The only way to modify a child support order in Colorado is to undergo a specific legal process and receive official approval from a judge. A judge will only give this approval if the petitioning spouse has a valid reason for the modification.
When Might Modification Be Necessary?
A parent might need to modify a child support order if his or her circumstances have changed. If a parent loses a job, for example, and can no longer meet the child support order requirement, that parent may need to request a modification to the order. In Colorado, the courts will only consider modification requests if a parent has experienced a substantial and continuing change in circumstances since the date the court issued the initial order.
- Change in income
- New job
- Job termination
- Substantial promotion or demotion
- A change in the child’s circumstances
- New medical or dental needs for the child
- Special education needs
- A change in the number of annual overnight stays
- A child becoming emancipated
These are common situations in which the courts may accept a request for child support modification. The change in circumstances, however, cannot be something the parent fabricates to avoid paying child support. The courts will often request documentation to prove the change in circumstance. The courts will not accept a modification request if the parent has created the situation him/herself, such as by buying an expensive car or boat.
How to Ask the Courts for Child Support Modification
If you lose your job or something else happens that makes it necessary to change how much you pay in child support, start gathering documentation that will help prove that your current circumstances are substantially different than when you first got divorced. If you are the spouse that receives child support, you also have the power to request modification. This may be necessary if your spouse has gotten a new job or you are responsible for more overnight stays, but your spouse has not voluntarily offered to pay more money.
You must submit your child support order modification request in writing to the Child Support Enforcement Unit in your county. You must sign the request. Your request must also include a Sworn Financial Statement (or Income and Expense Affidavit) that gives details about your debts, assets, and income. Give your reason for requesting the change, as well as the new amount you are requesting. You must base the new amount on calculations using an official calculator. Include a Child Support Worksheet that breaks down your calculations.
Once you have provided the courts with all the information and documentation they need, you may have to appear in court for a hearing. Whether or not this will happen depends on the judge presiding over your case. The judge will have 49 days after you file your request to either schedule a hearing or make a decision without a hearing. If a hearing is necessary, you will need to explain to the judge why you believe the modification is necessary. You can hire an attorney to help you with this process.
Imputed income is a court-ordered income amount that may apply to child support cases in which one parent tries to escape financial responsibility by lying about his or her income level. The divorce courts in Fort Collins take child support orders very seriously. They will handle a parent that tries to act outside the system by imposing an imputed income amount on the child support decree. If you have specific questions about your assets or computing income, speak to a Fort Collins divorce lawyer today.
About Colorado Child Support Orders
The courts in Colorado may issue a child support order in a divorce case involving children. The purpose of a child support arrangement is to maintain the child’s quality of living after a divorce. The courts believe a child should not have to suffer a decrease in funds, food, clothing, etc. because of a divorce of the parents. To keep the child’s financial situation the same post-divorce, the courts may order a child support requirement to one spouse – typically, the non-custodial parent.
A parent with a child support order will have to pay the amount stated in the order until the month that a child out of high school turns 18, or until the month a full-time high school student turns 19. Parents have the option of working together to determine how much child support one spouse should pay. If they cannot agree on an amount, however, the courts will set child support payments. A judge will calculate the amount of child support based on the Income Shares Model, which looks at the gross incomes of both parents.
When Might the Courts Impute Income?
During a child support case in Colorado, it is up to both parents to accurately report their income to the courts. The courts will then use these incomes, plus information about what the family usually spends on the child, to assign the noncustodial parent’s share of support. A parent may try to cheat the child support system by reporting a lower income level than he or she actually earns. The parent might think that this will punish the parent by paying less. Since child support payments are for the child, however, and not the spouse, the courts will not allow a parent to get away with reporting an incorrect income.
If the courts discover that a parent is trying to shirk his or her child support responsibility by lying about income, they will assign an involuntary income amount to that parent. This is called imputed income. Imputed income may also be a necessity if a parent is intentionally avoiding work opportunities to remain unemployed or underemployed. To calculate imputed income, a judge will analyze the parent’s earning potential based on education, work experience, location, and other factors. Then, the judge will issue a child support order based off the imputed income, regardless of the parent’s actual income.
For example, if a parent was earning $100,000 a year, but then the year of the divorce switches to a job earning $50,000, a judge may assign an imputed income at the $100,000 salary level. The parent would then have to pay the amount based on $100,000, even if he or she has a job that pays $50,000. Each case is unique. A judge will assess the specific situation to make sure the parent in question actually has the ability to make more but is intentionally making less, or that the parent is covering up his or her actual income. Then, the judge will assign an imputed income amount he or she deems appropriate.
Posted in Child Support on February 2, 2019
The Colorado family courts calculate child support based on both parents’ incomes, the child custody agreement, costs of childcare, and many other factors. Once the courts issue a support agreement, the paying parent must keep up with support payments to the recipient, or else face consequences, such as contempt of court. The only situation in which a parent may stop or alter a child support arrangement is with an official modification request. This may be necessary if the paying parent loses his or her job.
Obtaining a Modification from the Colorado Courts
A child support order during a divorce case is for the good of the child. The courts will issue child support orders to prevent children from suffering any unfair changes to quality of life because of their parents’ divorces. The courts will not change or end a support order easily. They must have proof that the parent cannot afford to make the payment, through official legal processes. It is not enough to report to the Child Support Division that you have lost your job. Instead, you must file a motion and receive an order of modification from a judge.
If you lose your job, receive a demotion, or otherwise experience drastic change in income while you have a child support order, the courts may modify your agreement. The courts may accept a motion to lower child support payment amounts, or to cancel the agreement completely. However, to receive this modification, you must be able to prove you are legitimately unable to make the payment. Loss of a job may be a legitimate reason to request a support order modification in some circumstances.
Involuntary vs. Voluntary Loss of Job
The courts draw an important distinction between voluntary and involuntary loss of job. If a parent voluntarily quits his or her job in an effort to avoid paying child support, the courts will not let that parent get away with not paying. Instead, the courts will use imputed income to calculate child support payments. Imputed income is the amount the parent could reasonably earn if he or she had a full-time job. The courts may also use imputed income to calculate child support if a parent has the ability to work, but chooses not to, to avoid paying child support.
Involuntary loss of a job due to an injury, disability, company layoffs, or termination, however, could result in a successful modification request. You will need evidence of the involuntary loss of job to prove your case, as well as proof that you engaged in diligent efforts to find another job, to no avail. Copies of job applications and records of interviews may suffice as evidence of loss of income. If a judge reviews your case and decides your situation warrants a child support order modification, you may receive a temporary or permanent change.
What to Do After Losing Your Job
If you lost your job and cannot afford to make your child support payments, file an official motion for modification. Do not work things out with only your spouse. An off-record agreement could come back to work against you, and you may end up owing your spouse missed payments plus interest and penalties. Do not ignore the problem and assume it is okay to miss a few payments in-between jobs. The courts may find you in contempt and may even arrest you for being in arrears of your payments.
Instead, file for a modification of child support at your local Colorado family court. While your paperwork goes through and a judge reviews your case, do not stop searching for another job. Continue seeking employment so the courts know you are putting forth a reasonable effort. Take your financial obligation seriously and hire a child support attorney in Fort Collins if you need help with your modification request.
FAQ’s & Resources
Posted in Child Support on October 3, 2018
When relationships don’t work out, the fallout can affect many things. In some relationships, that may mean that the couple’s children go through a change in environment, especially whenever parents are divorcing. However, both parents have an obligation to care for their children, even when the parents’ relationship changes.
To help ensure that children have suitable financial support after a divorce or breakup, Colorado law requires child support payments. These payments intend to provide children with the same standard of living they would have had if their parents had stayed together. To do this, Colorado’s child support guidelines follow a complicated set of equations to determine the appropriate amount of support for the family’s circumstances.
- What expenses are included in child support?
- What determines who pays child support?
- How does Income work in determining child support?
- How Is child support calculated?
- Can you deviate from child support guidelines?
- How long is child support paid in Colorado?
- Can a child support agreement be changed?
What Types of Expenses Are Part of Child Support?
A child support order will include expenses for:
- Health insurance coverage
- Medical care
Travel expenses only apply when they are for transport associated with visitation, not for general travel.
What Factors Determine Child Support?
Several circumstances impact child support payments, all working to ensure that the parent responsible for the children can take care of them. One major factor in this is custody, determined by a separate agreement. In most cases, the parent with primary custody of the children will receive child support, though this can vary for parents who share custody.
Both parents’ income is also essential in determining custody. Cases where parents have grossly disparate incomes can lead to larger support payments when combined with other factors. The number of children and the amount of time they spend with each parent will also play a role. Other factors include:
- The financial resources and needs of both the custodial and non-custodial parent
- Physical and emotional condition of the children
- The children’s educational needs
The goal is to prevent major disruptions in a child’s well-being through the removal of financial resources. For young children especially, a divorce can be an emotionally impactful time. Preventing additional shocks from sudden changes in the standard of living can help to lessen the overall changes.
How Does Income Work in Determining Child Support?
The income of both parents plays one of the largest parts in establishing and fulfilling child support agreements. Many different sources of money can serve as your income for the sake of determining child support, such as your salary, independent contractor payments, bonuses and benefits, overtime pay, alimony, and workers’ compensation, to name some.
While lottery winnings do not count as part of your income, other monetary prizes can. Other types of monetary gain excluded from your child support case include child support received for children from other relationships or public assistance.
Aside from including all sources of monetary gain, Colorado uses adjusted gross income in calculating child support payments. However, this adjusted gross income is not the same as you would use for tax purposes.
Parents who are already paying some form of alimony or child support for another relationship can take those amounts out of their adjusted gross income. It’s also possible to deduct support amounts for children from other relationships who are living in the same household. This amount varies based on basic support obligations and the number of children.
Both parents can also deduct certain recurring expenses, such as work-related childcare, adding children to health insurance policies, additional health care expenses, as well as costs related to education and transportation for visitation purposes.
Non-custodial parents who earn between $900 and $1,900 gross monthly income can potentially qualify for a low-income adjustment to child support payments. However, parents who are voluntarily unemployed or underemployed may have the court determine an imputed income based on evidence of earning capacity, rather than their actual income. The imputed income is an amount attributed to the parent who has shown the capacity to earn that amount even though they do not earn it now. Parents who are usually exempt from this process include parents who:
- Are caring for children under the age of 30 months
- Have mental or physical limitations
- Will be incarcerated for more than a year
- Are making a good faith career change to increase income
Once the court has determined the appropriate levels of gross income for the parents, remaining child support calculations will use that amount.
How Is Child Support Calculated?
Along with adjusted income, the child support calculation factors all the applicable variables into consideration. The calculation takes the combined gross income of the parents and draws a percentage to serve as the child support amount. For one child, the percentage is roughly 20%, with an additional 10% added per additional child. For example, two children would have a base child support amount of 30%, three children for 40%, and so on.
After that base amount is established, the courts split support between both parents. The other determining factors of custodial time, income, etc. determine which parent is responsible for how much child support. The main custodial parent will pay his or her portion in normal expenses, while the non-custodial parent will pay the remaining amount in child support payments.
When trying to calculate child support payments on your own, you must still follow Colorado guidelines. The state also provides worksheets to help determine amounts. You can use the manual worksheets or use the electronic worksheet to automatically calculate your amount after entering all the relevant information.
Depending on the custody arrangement for your children, you may need to fill out a different worksheet:
- Form JDF 1820M works for most cases where children spend no more than 92 overnights with the parent with less physical custody.
- Form JDF 1821M works for cases of shared custody where children spend at least 93 overnights with each parent.
When parents have different levels of custody for separate children, it will also impact the amount of child support payments. If you are trying to determine your own child custody payments, you may need to fill out different worksheets to account for the different children payments, and then compare the support amounts for the different situations.
Is It Possible to Deviate from the State Child Support Guidelines?
In some cases, parents may decide to set up their own form of child support agreement. When both parties agree on this child support amount, the court may approve it. However, if the agreed amount of support deviates too far from state guidelines, the court may order a new child support amount more in line with the guidelines.
Additionally, a court may choose to deviate from the state outlined guidelines. This is likely to occur whenever the strict application of the guidelines would be unfair to a child or one of the parents. Some circumstances could involve an underpayment for support or too much financial strain on the non-custodial parent in a way that would severely impact their quality of life.
However, these situations are the minority. Most cases of child support will follow the state’s guidelines.
When Do Child Support Payments Stop?
The support-paying parent will continue to pay child support until the child turns 19. If the child still attends high school, the payments will continue until the child turns 21. For children who have mental or physical disabilities that prevent them from supporting themselves, child support will continue indefinitely.
In cases where a parent pays support for multiple children, payments for children who turn 18 or 21 respectively will stop at those points, while payments for younger children will continue until they are of age.
Is It Possible to Modify a Child Support Agreement?
Many higher-income parents worry that the discrepancy between their own income and their partners will result in high child support payments. However, the amount determined by a child support agreement is not permanent. As children and parents’ circumstances change, Colorado law allows for adjustments to child support agreements.
Either parent may request a review of the child support order, so long as it connects to changes in circumstances. Some of the major factors that allow for review are:
- A child under support has become emancipated
- One of the parents has had a change in income
- The cost of raising the child has changed, such as daycare or healthcare expenses
- The number of overnight visits with parents has changed
- Three years have passed since your last reviews
Including supporting information for the reason for the request will help facilitate the process. It can take up to six months to completely review and change child support. The new child support calculations will use the current adjusted gross income and expenses of the parents, rather than the previous amounts. However, an order will not change if the dollar amount has not adjusted 10% or more or there is an adjustment to medical support costs.
Determining Child Support for Your Situation
Calculating the appropriate amount of child support can be a challenge, especially in complex situations that include more variables. Even so, children have a right to fair amounts of child support for their situation. In cases where parents don’t agree to the terms of child support, it may be necessary to enter negotiations, enlist the help of a family law attorney, or dispute the matter in court.
No matter the path or result of your child support order, the most important part is to remember that payments are for the sake of your children’s well-being. As circumstances change, so may child support payments. Having the help of a skilled child support attorney can help ensure that your children have the best quality of life possible, given the changing circumstances.
A custody agreement is a complex, very detailed legal document that outlines both parents’ obligations and rights concerning their children after a divorce. There are different types of custody, and countless possible formats a custody arrangement might take. Some parents may wonder if they must still pay child support in a joint physical custody arrangement in which the parents split their time with the children 50/50.
Logic would dictate that if the parents spend equal time with their children, then neither parent should have to pay child support since they share equal responsibility. Child support generally exists so that a higher-earning parent who divorces a lower-earning parent will still contribute toward the children’s living expenses. While a 50/50 custody agreement may seem like it would preclude child support, this is rarely the case. The most important factors in any child support agreement are the time each parent spends with their children and each parent’s individual income. For more detailed about this, contact an experienced child support attorney in Fort Collins, CO.
Income Models for Child Support Determinations
Each state has unique laws concerning child support, and this includes the income models used to inform custody arrangements. In an income shares model, the court would determine the percentages of each parent’s income toward the total family income. If the family’s annual income is $200,000 and one spouse earns $125,000 per year while the other spouse only earns $75,000 per year, the lower-earning spouse would be responsible for a smaller share of the children’s living expenses.
Ten states and Washington, D.C. use a percentage of income models to determine support payments. In these cases, the court only considers the amount of income the noncustodial parent earns and requires him or her to pay a flat percentage in support to the custodial parent.
Time Spent vs. Support Payments
Courts also take the amount of time the children spend with each parent into account when determining child support payment amounts. The court will usually consider the number of overnights a child has with each parent to determine the level of custody each parent has in the agreement. Rather than requiring a perfectly even split of 182 overnights per year with each parent, courts generally consider “significant” amounts of overnight time as any custody arrangement beyond every other weekend with one parent. For example, a state may uphold that 123 overnights per year are enough to qualify as joint physical custody.
The amount of support a parent pays generally reflects the time he or she spends with his or her children. For example, a parent who only has about 100 overnight visits per year with his children may need to pay 20% of his income in support while a parent who has 180 overnights may only need to pay 10%. Some custody agreements may include payment schedules that fluctuate over the course of a typical year. For example, if one parent only sees the children on weekends during the school year but has them during the weekdays in the summer, that parent may pay more in child support over the school year and less during the time he or she has the children.
Adjusting Your Child Support Agreement
It’s important for co-parents to stay in touch regarding issues with their children as well as important life events that may impact a custody agreement. For example, one parent may receive an offer for an out-of-state job that would require him or her to move. Another example could be a noncustodial parent losing his or her job and being unable to pay required child support payments.
There are many resources available to divorced parents in these situations, and it’s important to speak honestly about these issues with your ex-spouse. If you are concerned about your obligations under your custody agreement or believe your agreement requires an adjustment, speak with a Fort Collins divorce attorney about your concerns.
Posted in Child Support on September 5, 2018
The goal of a child support agreement in a divorce or separation is to provide for the child’s best interests. No matter what this looks like, the Colorado courts will strive to fulfill it. The amount of money one spouse will have to pay to the other, the frequency of support payments, and the duration of the agreement will all depend on each family’s unique needs and circumstances. Knowing what age child support stops can help families plan for the future.
The Age of Emancipation
Emancipation refers to the point in time at which a minor comes of age or reaches adulthood. In general, child support payments must continue until a child reaches his or her age of emancipation. This age will vary state by state. According to Colorado laws, the age of emancipation in the state is 19. This means that for all child support agreements made in Colorado, the noncustodial parent will have to make payments until the child turns 19 – unless extenuating circumstances exist.
The age of emancipation in Colorado has been 19 since July 1, 1991. Prior to that, parents had to pay child support until the child was 21. If the courts issued your child support order before July 1, 1991, you may have to abide by the old age of emancipation. Otherwise, you will go by the new age of 19. Contact an attorney or your local county court for more information about your specific support agreement.
Exceptions to the Rule
Although the majority of child support agreements will continue until age 19, some exceptions to the rule exist. In a few special cases, a parent may have to continue paying child support past 19. In others, parents may agree to cease payments sooner than 19. Work with your family attorney to understand the rules that may apply in your case. In general, the following three situations could adapt a standard child support payment order in Colorado:
- If the child is still in high school by age 19. A child in high school at 19 who is still dependent upon the custodial parent (e.g., lives with the parent or the parent pays for the child’s education) may still receive child support from the noncustodial parent.
- If the child has a mental or physical disability. A child with a disability of any kind may be eligible to continue receiving child support as long as he or she depends on the custodial parent. As long as one parent is paying for the child’s medical care, nursing, housing, etc., that parent may qualify for child support.
- If both parties agree in writing to other terms. In most cases, a judge will agree to custom child support payment terms, as long as the couple can agree in writing to what those terms are. It is the couple’s prerogative to agree on either shorter or longer terms. A judge will generally grant custom terms if they provide for the child’s best interests.
Unlike alimony (spousal support), a child support agreement will not stop if the spouse remarries or otherwise changes financial station. The only time the courts may modify a child support agreement is if the paying parent requests a modification based on a change in financial status, such as a job termination. Otherwise, payments must continue until the child turns 19 in the state of Colorado.
How a Child Support Lawyer Can Help
These are the rules for child support payments in Colorado. If you or your spouse live in a different state, different rules may apply. The age of emancipation can vary from 18 to 21, according to state. A lawyer can help you understand your specific child support payment agreement, as well as your rights and responsibilities as either the custodial or noncustodial parent.
Posted in Child Support on July 11, 2018
Child support can represent a significant financial expense for many noncustodial parents. If you’re paying large child support amounts each month, you may be wondering how long they last or if (and when) you can legally stop paying them. Here’s what Colorado law says about payment of child support and your rights and responsibilities following divorce as a noncustodial parent.
Terms of Child Support
A Colorado child support arrangement only ends when a child turns 18. There are, though, some provisions that exist in which a noncustodial parent may have to continue to pay child support, such as if a child still attends high school and lives at home, or if a child has special needs.
Colorado also requires you to take additional steps for terminating child support obligations or if a custodial parent wishes to extend child support payments beyond the previously determined end date.
Scenario 1: Age of Majority
The most common reason for terminating child support payments occurs when a child reaches the age of majority, or the age of 18. The legal guidelines set forth in Colorado stipulate that when a child reaches the age of 18, he or she is no longer a minor and can make legal decisions on his or her own.
The age of majority may occur when your child turns 18 or graduates high school, whichever is sooner. In some states, the age of majority could be as late as 21.
Scenario 2: Your Child Seeks Emancipation
A second scenario that could lead to the legal termination of child support occurs when a minor child seeks legal emancipation. When your child seeks emancipation from you and your ex-spouse, he or she follows a legal process that states he or she can become self-sufficient. If the courts grant emancipation, he or she will no longer require financial support from either of you. If a court grants legal emancipation of your minor child, you are no longer under any legal obligation to provide child support.
Scenarios That Include Support Beyond the Age of Majority
Certain stipulations may exist that require or compel you to provide support beyond the age of 18. These scenarios include:
Mandated College Support
In some instances, the state will allow your child support payments to continue, even after your child reaches the age of majority. This occurs when most of a child’s support applies to his or her education, such as attendance in a college or university or another post-secondary institution. You and your ex-spouse may work this out in your divorce decree and include provisions for it in a child support agreement.
The courts may make an exception beyond the age of majority if your child has special needs. The courts, in general, view a disability as an economic hardship that allows the custodial spouse to receive additional support, even beyond the age of majority. The situation can vary depending on the degree of your child’s disability, the amount required to adequately meet his or her needs, and more.
Child Support Agreements Are Legally Binding
There is little you can do to legally terminate child support. You have a financial obligation to support your child until he or she reaches the age of majority, unless one of the preceding circumstances or special situations apply. In fact, it’s more common for child support to extend beyond the age of majority than to terminate before it. Even if you experience a significant loss in expected income, the courts will adjust your child support payments to reflect your current financial situation, not terminate it. Child support arrangements are legally binding, and you must carefully adhere to their terms.
Posted in Child Support on March 28, 2018
Child support is a legally binding agreement. If someone you know is behind on his or her child support payments, there can be serious repercussions under federal law. The United States Code, Section 228 Title 18, establishes that willful failure to pay child support is against the law in certain circumstances. This makes a violator subject to federal prosecution, in the event that he or she intentionally fails to pay court-ordered child support for a child who lives in another state or if the payment is more than a year past due or is more than $5,000 in arrears.
Failure to pay child support is a criminal misdemeanor charge, and violators may be subject to jail time.
Legal Concepts Underlying Failure to Pay Child Support
The courts may choose to jail someone who fails to pay child support under contempt of court charges. This is a legal term that means you violated a court order. Contempt of court can carry fines of up to $500 for each violation, as well as any associated court costs and attorney’s fees.
If you’re facing contempt of court charges, you have the right to an attorney who will represent your interests throughout the proceeding. The courts may appoint an attorney for you if your charge meets the following requirements:
- Your income is low, or you have no income.
- Your hearing could result in jail time.
In some cases, the courts may allow you to choose imprisonment or pay a fine. While you’re serving time in jail, your child support order will continue. You then must petition the court to request a reduction in your child support payments, based on your capacity to earn money while in prison. A prison term for a child support violation can be as long as six months, so it’s essential to petition the courts for this reduction to avoid even more back child support payments.
What If I Can’t Afford Child Support Payments?
Many noncustodial parents assume that if they are unable to make payments, they can receive a reprieve or a reduction in the balance due when they provide an explanation to the court. Unfortunately, this isn’t always the case. If you wait to the point that you’re facing incarceration for nonpayment, the courts will not be able to reduce any back payments. If you’re facing a change in financial circumstances, alert the courts as soon as possible. Provide proof of your reduced income and ask for a commensurate reduction in payments. In this case, the courts may be able to reduce the amount of your payments temporarily or permanently.
If the courts grant a suspension or reduction of your child support payments while you’re in prison, your release will be a “material and substantial” change in your financial circumstances. When the courts acknowledge a material and substantial change in your finances, they must change the terms of your court order. As a result, your child support payments will likely increase again to reflect your increase in earning capacity upon your release from prison.
Child Support Best Practices
There is no way to “get out” of child support payments, and nonpayment can have serious repercussions. Aside from wage garnishment, you could face up to six months’ jail time for violating a court order. If you’re struggling to make child support payments, contact the court and request a reduction in payments as soon as possible. Waiting too long could lead to serious legal consequences – and render the court unable to forgive you or reduce your back payments. If you have any further questions, consult your Colorado family law attorney.
Posted in Child Support on March 12, 2018
After a divorce, it may seem like the legal decisions are set in stone. However, life changes can happen fast and, sometimes, your divorce negotiations need to change to keep up with other changes in your life. Other times, the circumstances of your children’s lives change, and a modification may be necessary. If the courts have denied your child support modification, the divorce attorneys at The Law Office of Stephen Vertucci can help.
Why Would Child Support Need Modification?
Colorado child support is based on financial factors and the extensive expenses involved in raising a child. If any one of these financial factors changes and there is a shift the financial situation, your child support may need to be modified to correspond with the new situation. Modifications could come in either direction if one parent has less money to offer or more money to offer as financial support. Here are some of the factors that may cause your child support to be modified:
- One person’s income has changed
- One person’s parenting time has changed
- The cost of health insurance or the person who is paying the health insurance has changed
- The child no longer needs or begins to need some form of daycare
- The child emancipates
- One of the parents has a new child from a different relationship
Because parenting situations from family to family can be dramatically different, there are not many hard and fast rules for how much child support is offered or how much it may change after being modified. Judges will use their own discretion in deciding many of the parameters for divorce cases, including child support.
What Is the Difference Between a Continuing Change and a Substantial Change?
There are two different types of child support modification: a continuing change and a substantial change. A continuing change is when the parent’s change of circumstance continues for a reasonably long period of time. The judge of each case must determine how they define “continuing,” so results could be different depending on who the judge is for your case.
A substantial change is when the financial circumstances of one parent change significantly. If the change would adjust child support by 15% or more, it is considered a substantial change. A 15% difference is not a requirement to file for child support modification, it is just the standard that the court uses to determine whether it is significant or not.
Voluntary and Involuntary Changes
When the court looks at a request for child support modification, a large factor is whether the change was voluntary or involuntary. The court has the option to deny a request to pay less child support if they believe you chose to have different financial circumstances. Parents have a foundational obligation to support their child, so if the judge determines you voluntarily put yourself in a situation where that would become difficult, it is likely your request for lower child support will be denied.
Sometimes people have no power over changes in finances. For example, if you were let go from your job or demoted to a significantly lower salary, you experienced an involuntary change and have a higher chance of your child support being modified to take your new situation into account.
What Happens If the Courts Deny My Child Support Modification?
Raising a child is difficult enough without having to worry about receiving enough financial support. If you request child support modification and it is denied, you still have options. An attorney who is experienced and knowledgeable in divorce laws can help you find a way to get the child support that you need to raise a happy, healthy child.