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The Colorado Assembly has made the most significant set of changes to the child support statutes in several years, and these changes came into effect on January 1, 2017.

Retroactive Modification of Support

When the parents have agreed to a voluntary change in custody, C.R.S. 14-10-122(5) provides that trial courts may modify child support retroactive to the date of the change. Note use of the term “may” - the court has discretion whether to make the support change retroactive at all, and if so, how far back to go.

Although courts are often skeptical of a parent waiting years and then ambushing the other parent with a large retroactive award, there was not previously any statutory limit.

Commencing 2017, C.R.S. 14-10-122(5) now provides that a court “shall not” impose more than 5 years of retroactive support, unless such limit would be unjust.

NOTE - retroactive child support based upon a change in custody should not be confused with paternity cases, where a parent may be on the hook for support retroactive as far back as the child’s birth!

Credit for Non-Joint Child

The Colorado Assembly has a history of tinkering with the credit that a parent receives for a non-joint child he/she has legal responsibility for. Simplistically, having a non-joint child reduces that parent’s income for purposes of calculating child support. However, originally the credit only applied to children born before the ones at issue (i.e. pre-born children), not after-born children.

Then, through 2016, the credit would apply to after-born non-joint children, but only to the extent that it mitigates a child support increase. After-born children would not count on the worksheet to the extent that they decrease the child support payable.

Now, effective January 1, 2017, the legislature has removed that distinction, and after-born children can be included on the child support worksheet regardless of whether it results in an increase or decrease in support. C.R.S. 14-10-115(6).

Overnights Not Necessary the Final Word

Colorado support has long been based upon the number of overnights that a child spends with each parent. At times, that has resulted in child support awards that did not necessarily reflect the actual time the children spent with each parent, or the costs each parent incurs.

By way of example, consider two parents with an equal parenting schedule. However, the mother works from home, while the father commutes to Denver for his job. They agree that the father would drop the children off with the mother before breakfast at 6:30 a.m. every weekday during the father’s time, and the father would pick them up after dinner at 6:30 p.m. on weekdays. And the kids eat school lunches.

While the calendar shows equal time, the children are spending the majority of their waking hours with the mother, who needs to serve them breakfast and dinner 5 days out of the father’s 7 days during the school year.

C.R.S. 14-10-115(8)(e) adds as an explicit basis for a court to deviate from the guidelines “instances where one of the parents spends substantially more time with the children than is reflected by a straight calculation of overnights.”

Exchange of Financial Information

The statute previously authorized the court to order a periodic exchange of financial information, but did not explicitly require it. Most family law firms, including our own, typically have included in parenting plans a provision requiring the exchange of financial information.

But now the statute requires the exchange of financial information unless otherwise ordered by the court. C.R.S. 14-10-115(14).

Have a CO divorce or custody case? Black & Graham can help.

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