Divorce: Calculating Maintenance in the Age of COVID-19 and Home Learning

Divorce: Calculating Maintenance in the Age of COVID-19 and Home Learning

As parents of school-aged children are well aware, in Colorado most students are currently “learning from home” and classes are conducted remotely. The idea is to help contain the spread of the COVID-19 virus, and, while it has likely prevented transmission that would have occurred were the kids in school every day, some parents are requesting modifications to their divorce maintenance and child support obligations as a result of this substantial change. 

Do these requests hold up in Court? Let’s have a look. 

Calculating Maintenance and Child Support

Here’s a situation that has come up since schools closed: the kids’ primary custodian (often it is the mother, but, in some cases, this is the father) claims that, as a result of remote learning, he or she isn’t able to work. Their attention needs to be on the kids’ learning. They argue that it requires a lot of effort to ensure that kids have the right setup for school, that they get proper meals, snacks, playtime and so on. 

All the work that used to be done by the schools now falls on the shoulders of the primary parent. Since this responsibility requires so much time and energy on the part of the parent, former spouses are claiming that they aren’t able to work and earn any income or as much as they were earning before, which affects the maintenance and child support schedules. 

Normally, maintenance and child support are calculated by formula. When assessing child support, the Court is required to use the formula; when assessing maintenance, the Courts are not obligated to follow the formula; however, in an effort to provide consistency, many Courts follow the formula. A key part of the formula is the party’s income: the statute says that if somebody is voluntarily unemployed/underemployed, the Court will impute an income to them equal to what that person could realistically earn based on education, experience and prior income if he or she were to go find a job.

Thirty years ago, there was a famous case where an attorney was earning $100,000 per year (which was a lot of money in the 1990s). When his wife filed for divorce, he said, “This is so upsetting that I can’t concentrate on work.” He closed his practice and got a job at McDonald’s. To calculate maintenance and child support, he told the Court to use his McDonald’s income. The wife claimed he did this to deprive her of reasonable maintenance. The Court decided to make the calculations based on his $100,000 earning potential and history. 

In a more recent example, I heard about a woman earning $300,000 annually working for a huge tech company. She was terminated for cause, and, in the meantime, her husband filed for divorce and filed a protection order against her. When she searched for a new job, the protection order came up in the background check, making it nearly impossible for her to be employed at a comparable salary. When her husband’s attorney requested that the $300,000 salary be imputed to her for purposes of calculating child support and maintenance, she argued that she had made good faith efforts to find a job and was unable to do so.  She argued that the husband’s conduct had substantially impaired her ability to find employment.  The Court agreed with the wife and ultimately factored “zero” into the maintenance/child support formula as her income. 

Maintenance and Child Support during a Pandemic

So, you can see where the law was prior to the pandemic and how the maintenance/child support formula is a big deal. Now that children are required to learn remotely, former spouses are coming forward and claiming that, due to remote learning, they have to stay home and facilitate schooling for the kids.  They want to recalculate child support and maintenance, reducing or eliminating his/her income.

As I always say, every case is different, and there isn’t a guaranteed outcome in a case like this. However, in my experience, the Court will follow the statute and impute an income to a parent — even if he or she claims to be needed at home for schooling — because there are workarounds for remote learning, including daycare (offered by schools or privately), learning pods, and other options.  This is not considerably different than parents that wanted to stay home with children until the child started school.  The statute does not allow that.  Additionally, while Governor Polis signed several executive orders in light of the pandemic, he did not sign any orders regarding the calculation of maintenance and child support. 

If you are in the midst of a divorce or need to amend your divorce agreement, parenting schedule, child support or maintenance payments, call us today at 303-449-1873 to set up a complimentary consultation.

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