Denver Child Support Attorney
A child support order will be included as part of every decree of dissolution of marriage or legal separation if the parties have children together.
The child support obligation commences when the parties separate, when the petition for divorce, motion for allocation of parenting responsibilities or motion to modify is filed, or the date of service, whichever is last.
The obligation to pay child support continues until the child reaches 19 or becomes legally emancipated, for example, by getting married or joining the military. The court can also enforce a voluntarily agreement to extend the term of child support up to the child’s 21st birthday. The Court may also order child support beyond the child’s 19th birthday if the child re-enrolls in high school after an extended absence.
To assist in the calculation of child support, the parties are legally required to provide each other with their financial records, such as taxes, W-2s, bank statements and pay stubs within 40 days of the filing of the legal case. The parties are also required to exchange a Sworn Financial Statement to each other, which form highlights the expenses, debts and assets of each party.
Calculating Child Support
The amount of child support is calculated from a statutory formula based on the gross income of both parties and the number of their children. For example, based on current guidelines, if the parties combined gross income each month is $6,000 and they have two minor children, the monthly child support payment is $1,180.
The amount of child support calculated under the statutory formula is presumed to be the proper amount of child support; however, either party can challenge the statutory amount on equitable grounds. Such grounds include, gross disparity in income between the parties, substantial non-income-producing assets owned by only one of the parties, overtime pay, income from a second job and several other bases.
The parties also can stipulate to a different amount of child support. The court will usually accept their agreement unless it is obviously unfair to one party or insufficient to provide for the proper care of the child.
Gross income includes just about any form of income except child support and public assistance payments like foods stamps and supplemental social security. However, disability income is included in gross income. Gross income does not include the value of gifts or direct payments for one party’s living expenses, but does generally include payment of money as a gift or cash payment to the party for his or her living expenses. Interest income is included in gross income.
For self-employed individuals, gross income is essentially all gross receipts less ordinary and necessary expenses required to obtain such income. Any other significant payment or reimbursement from an
employer that reduces one party’s living expenses is included. Notably, automobile allowances paid to an employee of a company are usually included in his or her gross income.
Spousal maintenance (alimony) is included in the gross income of the receiving spouse and deducted from the gross income of the paying spouse, even if the payments go to a third party.
If one party is voluntarily unemployed or underemployed, the court will calculate child support based on that party’s potential income, rather than his or her actual income. An exception exists if the party is physically or mentally incapacitated or is caring for the parties’ child who is under two and one-half years old.
A party is not “underemployed” if his or her employment is temporary and “reasonably intended to result in higher income within the foreseeable future.” Also, a party is not underemployed if he or she is enrolled in an educational program and seeking a degree or certificate that will result in a higher income within a reasonable period or has made a good faith career choice not intended to deprive a child of support and which does not “unreasonably reduce” the amount of child chare available to a child.
Shared Custody and Child Support
If the parties share parenting time with the child, the amount of child support paid by the party who does not have primary custody will be reduced but only if that party has more than 92 overnights each year (25% of the year) with the child. If the parties have multiple children all of whom do not live with the same parent, the parties may actually both owe each other child support. An offsetting calculation is necessary to determine who pays whom.
The formula requires both parties to pay for child care based on their relative income levels. For example, if the husband earns $3,000 per month and the wife earns $2,000 per month, he will be responsible for 3/5ths of the total child care expense. Child care costs must be incurred as a result of employment, job search, or education of the parent with primary physical care.
The child care provider need not be licensed, but the amount of child care may not exceed the cost of a licensed provider.
Health Insurance and Extraordinary Medical Expenses
The cost of health care insurance for the child is also shared by the parties according to their relative income levels. Proof of the cost of the child’s health care insurance is required in order to be included in the overall calculation of child support and the party insuring the child may be ordered to provide annual updates.
If the cost of the child’s health care is 20% or more of the paying parent’s gross income, or if the overall child support order is less than $50 per month, that parent may not be ordered to pay for the child’s health care.
So-called “extraordinary medical expenses” are also included in child support and shared by the parties. These expenses include copayments, deductibles or other out-of-pocket payments for the child’s health care in excess of $250 per year. They may also include mental health counseling and psychiatry for diagnosed mental disorders, subject to the Court’s discretion.
Education and Travel Expenses
Private school education, other than post-secondary education, that meets the particular educational needs of the child will be included as part of the child support calculation and split according to the parties’ relative incomes.
Travel expenses incurred transporting the child to and from the parties’ homes are also included in child support. This is more commonly an issue when the parties live in different states. The cost of the parent’s travel is also included as child support if the parent travels with a child under the age of 12.
Child support does not include costs for post-secondary education. Unless the court, issued a child support order providing for post-secondary education prior to 1997, or unless the parties mutually agree otherwise, a court cannot order one party to pay for the child’s post-secondary education. Even if there is an agreement between the parties, it expires by operation of law when the child completes an undergraduate degree or celebrates his or her 21st birthday.
Post-secondary education costs include tuition, books and fees to attend a vocational program, college, or university. Notably, these costs do not include room and board unless the child is under 19 and either lives full time with one parent while attending school or stays with that parent for at least 30 days each year when school is not in session.
Modifying Child Support
The court may consider modifying child support only if the resulting change is at least 10% of the current amount of support and there has been a “substantial and continuing change” in circumstances rendering the current order or agreement as to child support inequitable, unjust or inappropriate.
Contact us today for a free evaluation of your child support issue. There is no obligation.