Divorce: Will I Have to Pay Child Support?

In the State of Colorado, there is a formula for calculating child support which, unlike the formula for calculating maintenance (alimony), is required. In the case of ordering child support, the Courts can only deviate from guidelines if there is a specific finding that the formula would be unconscionable based on an unusual circumstance. 

When it comes to child support, there are several rules that must be followed in every case.

Child Support Cannot be Contractual

You and your former spouse will not have the option to agree to a set amount of child support that is binding. Child support is always modifiable (unlike maintenance, which could potentially be contractual if both parties agree to it). 

In a situation where the child support needs to be modified, it can generally only be modified from the day you file the motion; i.e., it will not be modified retroactively. The only time a parent is supposed to be able to get retroactive child support is when there has been a physical change of custody that deviates from the original parenting agreement with the other parent’s consent. 

For example, in one case I worked on, the agreement stipulated that the kids would split custody 50/50 with their mother and father. However, as they got older, they decided they wanted to live full time with the father, but even after the physical change of residence occurred, the father continued to pay child support for several months. 

In this case, when he finally came back to the Courts to officially modify the parenting agreement, we argued that he was entitled to retroactive child support because the change in custody was made with the mother’s consent, and we were successful. 

The Courts Must Follow the Formula Except in Specific Cases 

The State of Colorado provides a worksheet for divorcing couples to determine whether one party must pay the other child support. However, when there are specific findings, the Courts are permitted to deviate from the formula. 

For example, I once worked on a case where the mother did not work, but she still incurred full time daycare costs. The worksheet found that the father would have to pay 75% of his take-home pay in child support, which obviously was not going to work. 

We went to the Courts and argued, “If she’s not working, why is she paying for full time daycare?” In this case, the Court agreed that the formula was not fair and conscionable and had to be overridden. 

Determining Child Support

Child support is based on three figures: 

  1. Gross income of each individual party
  2. Overnights with the child
  3. Expenses associated with the child

If you want child support, this is not the time to work harder and earn a bunch of overtime pay (although technically overtime is not supposed to be included in child support calculations). I’ve had clients inform their bosses they don’t want a bonus, or requested that a bonus be delayed, in order to receive more child support. If someone is voluntarily underemployed or unemployed, an income can be imputed to him/her.

Overnights with the kids are the second consideration in determining child support payments. If you’re the person who will be paying child support, you may consider maxing out the number of nights you have the child because it will reduce the amount you have to pay your former spouse. [From a financial standpoint that makes sense; however, I would hope that parents would always ask for the schedule that is in the children’s best interests.]

Finally, expenses associated with the child may include daycare, health insurance, clothing, school supplies, etc. 

The worst thing that can happen in a divorce case where children are involved is that the parents stop thinking about what would be best for the kids and only consider what will affect their personal bottom line. However, many families successfully put the kids first and create a parenting agreement that works well for the family. 

If you are going through a divorce with kids, let’s talk. Call us at 303-449-1873 to set up a free consultation. 

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