Agreement to Limit Child Support Modification

Child support is one of those aspects of a divorce (or parenting) case which is subject to modification if circumstances change. Per C.R.S. 14-10-122(1)(a):

“the provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of changed circumstances that are substantial and continuing or on the ground that the order does not contain a provision regarding medical support, such as insurance coverage, payment for medical insurance deductibles and copayments, or unreimbursed medical expenses.”

And the very next provision defines a “substantial and continuing” change in circumstances as one which results in at least a 10% difference in child support owing (upwards or downwards). C.R.S. 14-10-122(1)(b).

For complete details on modifying child support, see our Child Support Modification & Termination article in this Guide.

Child Support Agreement Not Binding on Court

In Colorado, parents are not merely permitted to resolve their differences by agreement, they are actively encouraged to do so. However, that does not mean that the trial court may accept whatever they agree to. By way of example, when children are involved, the court must not only enter orders as are in the best interest of the children, but also follow the Colorado Child Support Guidelines.

But a family law judge always has the authority to award or modify support consistent with the guidelines. Parents

“cannot, by contract, escape their responsibilities to provide adequate child support. Any agreement the parties make with respect to child support is not binding on the court, and the parties cannot preclude or limit by agreement subsequent court modification of terms concerning child support.”

Combs, at 434.

In Micaletti, the parents at dissolution had agreed to a deviation from the child support guidelines. The trial court rejected their agreed-upon amount of support, and imposed its own. The Court of Appeals upheld that rejection, holding:

“Parents are under a legal obligation to support their minor children, and the parents may not, by agreement, adversely affect their children’s best interests… The trial court is not bound by agreements providing for the support, custody, or visitation of children. Instead, the child support guidelines expressly require the trial court to review stipulated support agreements and to determine the adequacy of child support pursuant to the guidelines.”

Micaletti, at 56. (Cleaned Up).

Can Parents in Colorado Agree that Child Support is Non-Modifiable?

Short answer – no. Child support is a right of the child, and is always subject to modification in accordance with the Colorado child support guidelines. A non-modifiability agreement is not binding on the court, but is merely one factor a court may consider when determining whether to deviate from the Colorado Child Support Guidelines is appropriate.

While parents are granted wide latitude in making agreements, one thing they cannot do is permanently “opt out” of the child support guidelines by making support non-modifiable. C.R.S. 14-10-112(6) provides:

“Except for terms concerning the support, the allocation of decision-making responsibility, or parenting time of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.” (Emphasis added).

Contract To Limit Modification?

Moreover, to prevent parents doing an “end-run” around the statute by arguing that the agreement limiting modification is a binding contract, the statute also provides that separation agreement provisions incorporated into a decree “may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms.” C.R.S. 14-10-112(5).

Courts have uniformly applied this provision to preclude parents from restricting or limiting a judge’s ability to modify child support in the future.

A father who had agreed to pay for his daughter’s college education in a “non-modifiable” agreement later attempted to modify that obligation based upon a 1997 change to the Colorado child support statute which limited a court’s ability to order payment of post-secondary education expenses.

The trial court denied the modification, finding that the parties had a binding contract not to modify the agreement. The Colorado Supreme Court reversed, holding that once an agreement has been adopted by the court, it is no longer enforceable as a contract, and modification must be determined in accordance with the law:

“It does not matter that the support order may have originated in separation agreement terms; the court still retains jurisdiction for modification.”

Chalat, at 53.

Lump Sum Child Support Modifiable

Parents cannot preclude modification of support by agreeing to “lump sum” support, as opposed to monthly payments. While such lump sum agreements are rare (at Graham.Law, we’ve only seen them once or twice in the past 25 years), parents may nonetheless have good reasons to pay a lump sum rather than making monthly payments (e.g. the custodial parent is awarded the equity in the residence as lump sum support).

However, a court is not bound by a lump sum agreement which precludes future support any more than any other limitation on child support modification. M.F. 

Agreement to Exclude Overnights from Calculation Not Binding

In Rosenthal, the parents agreed after divorce to add overnights to the father’s schedule, and  “that the extra overnights he will have shall not be used as a basis for reducing his child support obligation.”

A year later, the mother filed a motion to modify child support on the grounds that the father’s income had increased. The trial court accepted her argument that the additional overnights could not factor into the child support calculations, and the father appealed.

The Court of Appeals reversed. The court first noted that upon the court’s acceptance of the parties’ stipulation limiting child support modifications, it was no longer enforceable as a contract and instead became an order of the court subject to the child support statute. Rosenthal, at 1176.

The court held that when considering whether a deviation from the child support guidelines is appropriate, a trial court may consider as one factor an agreement to limit modification, but:

“we disagree with the district court’s implicit assumption that the February 1991 stipulation and order provided a non-modifiable mandate to any later court confronted with the question of modification of child support or parenting time.”

Rosenthal, at 1177.

Agreement Containing Future Support Changes Not Preclude Modification

Even when the parents have tried to anticipate future needs and built in automatic child support changes in their agreement, this too does not preclude a court from modifying support based upon the parents’ actual financial circumstances. Ludwig.

In Ludwig, the parties’ agreement adopted by the court included automatic reductions in support as time passed. The mother subsequently sought modification of child support to comport with the guidelines, and the Colorado Court of Appeals held that automatic reductions did not deprive the court of authority to modify support if there were a substantial and continuing change in circumstances. 

Deviation from the Guidelines Forever?

A court may accept a deviation from the child support guidelines agreed to by the parents. But parents cannot count upon such a deviation lasting forever, as a father found to his dismay. After the initial parenting order was entered, a mother sought the father’s consent to move their minor child out-of-state to Hawaii. Such a move would trigger Colorado’s relocation of children statute, giving the father the ability to object.

After initially objecting, the father later agreed to let the mother move in return for mother accepting $500/mo in child support, which was a downward deviation from the guidelines. The trial court accepted the agreement without making any findings.

Four years later the mother filed a motion to modify child support on the grounds that the father’s income had increased. The trial court applied an interesting analysis, using as a starting point not the actual $500/mo support, but the $650/mo support that would have been owing per the Child Support Guidelines at the time of the parties’ agreement. And since support would not increase by at least 10% from that hypothetical $650/mo figure, the judge denied modification.

The mother appealed, and the Colorado Court of Appeals reversed, rejecting the father’s argument that he was entitled to the “benefit of the bargain” of trading child support for consent to move. M.G.C.

The appellate court noted that if the mother had sought immediately to modify support, the trial court would have had discretion to apply the parties’ agreement and find that the child support statute guidelines amount was unjust. And even years later, the trial court could decline to modify support by making findings to deviate from the guidelines – however the judge could not decline to modify support based solely upon the parents’ agreement.

How Can Parents Make Child Support Non-Modifiable?

Child support cannot be made non-modifiable. Attorneys will, on occasion, draft agreements which attempt to limit modification, or attempt to define what a future court may or may not consider in a future child support calculation. This is inevitable, as parents want the flexibility to deviate from the guidelines without having to worry that the deviation isn’t worth the paper it’s printed on.

At Graham.Law, we counsel our clients that they should never count on a child support deviation to be lasting, nor any agreement which attempts to place limits on a court’s ability to apply the Guidelines in the future. But sometimes both parents really want such a clause, and we will, reluctantly, draft an agreement which (1) explains to the court why the deviation is warranted, and (2) if there is any kind of financial consideration (i.e. one parent is giving up something in return for non-modifiable child support), we will try to include a provision allowing that financial concession to be recouped should the other parent seek to modify support.

Such clauses may well dissuade a parent from sticking to modify support, but we always explain to the client that no matter what we write, a future court may decide to set aside the deviation and comport with the guidelines. And then not order recoupment of whatever the financial concession was.

The takeaway – avoid deviating from the Colorado Child Support Guidelines, and especially do not try to make child support non-modifiable. However, if you really must, then you cannot count on the deviation being permanent. Both parents are much better off negotiating for different financial concessions, and closely following Colorado’s guidelines when it comes to child support.