The ins and outs of child support

In a divorce when you have children, child support ” the money paid by one or both parents toward the cost of maintaining their children ” is a certainty.

Generally, the obligation of support extends through a child’s 19th birthday. The support obligation may, however, extend beyond the child’s 19th birthday if the child has not yet finished high school, the child will not become emancipated from the home owing to physical or mental disability, the parties agree in writing or there is an order for post-secondary-education costs. The parties may not agree to no support for an unemancipated child.

Unlike maintenance (Colorado’s version of what is generally thought of as alimony), the obligation of child support does not terminate with the death of the party whose obligation it is to make payment. At the death of the party, projected support may be reduced to a single lump-sum award against the estate of the deceased, or it can continue to be paid in installments by the estate under terms determined by the court.

The court may at any time order child support to be paid through the registry of the court. Under this arrangement, payments are made to and through the court rather than directly from one spouse to another. Payment through the court makes the support amount more easily enforceable. What may be lost, however, is expediency. Payments through the registry are often delayed.

All child support must be paid through a voluntary wage assignment unless the court permits another form of direct payment. The court also may require security for the payment of child support, which may take the form of a bond, property or other collateral. The court may, and often does, order the payer to keep current a policy of life insurance to assure continued payment of support. Equally common, the Ccourt may order the payer to maintain health- insurance coverage for the minor children.

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Many aspects of divorce may be settled by agreement between the parties. This includes the amount and kind of maintenance and division of the couple’s property. Such agreements may be memorialized by a formal document. Unlike maintenance and property division, however, the terms of any proposed agreement with respect to child support are not binding upon the court.

In Colorado, child support is based on Colorado’s Child Support Guidelines, which aare founded upon the concept of income shares. Income shares means that the level of support for the children is determined from the combined gross income of both parents. The parents share the burden of support in proportion to their individual incomes. The rule applies regardless of who has physical custody of the children. What is affected by custodial time with the children is the amount of child support actually paid by one parent to the other. Each parent is presumed to be responsible for the children’s living expenses while they are in that parent’s home. Accordingly, the more time the children spend with one parent or the other, the more credit that parent is given.

The first step in the process of establishing support is to define and determine income. The guidelines that define income include not only what we generally think of as income (such as a weekly paycheck) but also income from one-time occurrences such as capital gains, severance pay, bonuses and similar sources. Income from maintenance, including maintenance derived of this marriage, also must be considered.

If a parent is voluntarily unemployed or underemployed, there is provision for calculating potential or imputed income to that parent. Certain deductions and adjustments are allowed, including, for example, deduction for maintenance being paid to a spouse or ex-spouse and support being paid to other children.

Once the correct combined gross income is determined, the parties then calculate the percentage earned by each parent. This percentage in turn determines the percentage of total child support obligation for which that parent is responsible.

The parents are jointly obligated to provide for their children at a minimum level depending on their combined gross income. This “basic support obligation” is set out in a table which fixes an expected level of support which varies with the number of children in the family. In higher income brackets, the Guidelines may not apply at all.

To the basic child support obligation derived from the table may be added child care costs, exceptional medical costs, education costs and other similar costs. Further calculations are required if the parents have shared physical custody of the children.

If the expectation during the marriage was that the children would attend college, then the child may be entitled to a college education even if the marriage is dissolved. Accordingly, “support” of the child may continue past the 19th birthday (but in no event past the age of 21 unless by special order). The amount of college expenses that can be ordered is, however, limited to tuition and fees up to the amount of the last support order.

A last thought to consider in this overview is that once accepted by the court, support provisions cannot be modified except by a showing of substantial and continuing changes which have occurred since the original order which result in more than a 10 percent change in the recommended amount of support.

The child support scheme, though often complicated, is meant to remove the children of divorce from conflict and to assure provision for their continued economic viability in the aftermath of dissolution.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” He may be reached at 926-4461 or by e-mail at robbins@colorado.net.