Child Support Modification & Termination

child support

Once ordered, child support generally continues until a superseding child support order is entered. Though the parents’ incomes will change over time, day care expenses may decrease, or even disappear, such financial changes do not result in an automatic adjustment to support.

Termination of Child Support

Child support, and related obligations (health insurance, etc) in Colorado typically ends when a child turns 19, unless the court find the child has emancipated, or one of the specific factors set forth in C.R.S. 14-10-115(13)(a) is met:

  1. The parents agree in a written stipulation
  2. The child is mentally or physically disabled so cannot care for himself
  3. The child is still in high school
  4. The child is married (but support may be reinstated if the marriage ends)
  5. The child enters active military duty

Automatic Termination of Support

Child support terminates automatically only when the last (or only) child turns 19 or emancipates. In all other situations, a court order is required.

Moreover, the support obligation is not linear - i.e. the obligation for two children is not double what it is for one child. Such a result would result in a crippling obligation for people with multiple children. By way of example, for parents with a combined income of exactly $10,000/mo, the support owing per the Schedule of Basic Child Support Obligations in C.R.S. 14-10-115(7)(b) is:

  • $1215 for one child
  • $1844 for two children ($922/child)
  • $2219 for three children ($740/child)
  • $2479 for four children ($620/child)
  • $2727 for five children ($545/child)
  • $2964 for six or more children ($494/child, or less if more than six children)

It is common for a parent paying $1000/mo for two children to think of it as $500/child, and when the elder child emancipates, to cut the support in half. That would be a mistake both financially (because the support obligation is not half), as well as legally, because the only automatic termination is when the youngest or last child emancipates.

Legal Standard to Modify Child Support

Per C.R.S. 14-10-122(1)(a), child support in Colorado may only be modified in two situations:

  1. A “substantial and continuing” change in circumstances, or
  2. The current order does not contain a provision regarding medical support (insurance and unreimbursed medical expenses).

Rather than having parents guess whether a change in circumstances justifies a change in support, the statute spells out that a 10% change in support owing is sufficient to justify modifying support. C.R.S. 14-10-122(1)(b).

But the change would still have to be “continuing.” A brief or short-term change in income (e.g. a military member is deployed for 3 months and earns additional pay, or a parent is temporarily unemployed, but finds new employment within a few months) is unlikely to be deemed “continuing.” However, a longer term deployment of 12 or more months is much more likely to be considered a continuing change.

Note also that the 10% change applies to the support owing, not to a parent’s income. If a parent receives a 10% increase or decrease in income, that alone is unlikely to result in a 10% change in support. Consider two parents with a combined income of $10,000/mo, with Jan earning $6000, and Pat earning $4000. Per the Schedule of Basic Child Support Obligations, the basic obligation for one child would be $1215, and if the child lived with Jan, Pat’s 40% share comes to $486.

If Jan’s income decreased from $6000 to $5400 (a 10% decrease), the parties’ combined incomes decreases to $9400, resulting in a basic obligation of $1151. And Pat’s share of that increases from 40% to 42.6% (4000 / 9400), or $490. Thus, although Jan lost $500/mo of income, Pat’s obligation would only increase by $4/mo, so by statute support would remain unchanged.

Similarly, a 10% increase in Pat’s income would also not impact child support. If Pat’s income increased from $4000/mo to $4400, the parties’ combined incomes increases to $10,400, resulting in a basic obligation of decreases to $9500, resulting in a basic obligation of $1258. And Pat’s share has increased from 40% to 42.3%, or $532/mo. That is a $46 increase, but only a 9.5% increase from the existing $486 obligation, so support would again remain unchanged.

Finally, the fact that child support can be modified does not mean it is worthwhile to do so. With equal parenting time, and roughly comparable incomes, child support awards of $100 or less are not uncommon. If a parent’s child support would increase from $100/mo to $115/mo, that would be a 15% increase, but $15/mo is trivial enough that it would never justify the expense and hassle of litigation to change the support.

Retroactive Modification of Child Support

Per C.R.S. 14-10-122(1)(a), a motion to modify child support applies to payments due after the motion has been filed (i.e. is not retroactive).

There are two exceptions to this outlined in C.R.S. 14-10-122(1)(d):

  • “It would cause undue hardship or substantial injustice,” or
  • A change of physical custody

Proving “undue hardship” is a tall order. While our firm has seen courts use that as a ground to limit the retroactivity of a maintenance modification perhaps once or twice, I cannot recall seeing a court use that ground as a basis to deny a modification back to the date of filing. Note that the undue hardship is an exception to retroactivity which makes the modification less retroactive, and is not a basis to go back prior to filing and make the modification more retroactive.

With respect to a change of physical custody, C.R.S. 14-10-122(5) provides that the obligor’s obligation shall be modified retroactive back to the date of a court-ordered or agreed change: “when a court-ordered, voluntary, or mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified or terminated as of the date when physical care was changed.” So a modification under this provision could be retroactive prior to filing the motion.

And if the change would flip the support obligation from one parent to the other? Such support order “may” be retroactive back to the date of change, but it is not required.

There is a 5-year limitation on retroactivity: “The court shall not modify child support pursuant to this subsection (5) for any time more than five years prior to the filing of the motion to modify child support, unless the court finds that its application would be substantially inequitable, unjust, or inappropriate.” C.R.S. 14-10-122(5).

Modifying Expenses, Tax, etc

Whenever child support is modified, all related provisions addressed by the child support statute may also be modified, including the allocation of tax exemptions, health insurance, unreimbursed medical expenses, extracurricular activities, transportation expenses, and life insurance.

Annual Exchange of Financial Information

Since a parent needs access to financial information in order to determine whether support should be modified, C.R.S. 14-10-115(14)(a) provides that, absent court order to the contrary, the parents “shall exchange information relevant to child support calculations on changes that have occurred since the previous child support order, and other appropriate information once a year or less often, for the purpose of updating and modifying the order without a court hearing.”

The phrase “once a year or less often” is hardly the epitome of clarity, but that’s only the default language in case there’s no order to the contrary. Most of the time, a parenting plan negotiated between parents, or ordered by the court, will contain a provision for the exchange of financial information… including information on the actual expenses relating to the children of the marriage for whom support has been ordered”

The court shall not order the custodial parent to provide information when the non-custodial parent:

  • Has failed to exercise parenting time,
  • Has child support arrears, or
  • Where there is “documented evidence of domestic violence, child abuse, or a violation of a protection order on the part of the noncustodial parent.”

Cannot Agree to Non-Modifiable Child Support

Parents have broad discretion to draft agreements, but C.R.S. 14-10-112(6) provides that a decree precluding or limiting modification does not apply to child support. In short, a court will always have the authority to modify child support, even if the parties have agreed to limit or restrict modification. For a complete discussion of the law surrounding limitations on child support modifications, see the Agreement to Limit Child Support Modification article.

Do You Need a Child Support Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulment to military divorce issues. And we understand child support and family support. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

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Carl O. Graham