Category: Child Support

The Colorado Court of Appeals recently issued a decision regarding whether military housing and food allowances should be considered income when determining child support.

In the case of In re Parental Responsibilities of L.K.Y., and Concerning Peabody, the Mother was serving in the U.S. Army and lived off base and received housing and food allowances in addition to her salary. Mother argued that the housing and food allowances should not be considered income, which would increase her child support obligation, but should be used to reduce the child’s basic needs and therefore reduce her child support obligation.

The court disagreed and determined that the housing and food allowances should be included in her gross income, which in turn increased her child support obligation under Colorado’s Child Support Guidelines.

The most interesting part of the decision is the concurring opinion of Judge Rothenberg of the Court of Appeals. In Colorado, a parent’s child support obligation is determined by using the Child Support Guidelines. The resulting child support figure under the Guidelines is presumed to be reasonable and correct. However, a Judge has the authority to deviate from the Guidelines if, under the specific circumstances, the resulting child support obligation is not fair and reasonable. In this case, Judge Rothenberg raised the question as to whether including the housing and food allowance should have been grounds to deviate from the child support guidelines since the application of the child support guidelines, in this case, arguably resulted in an unfair child support obligation. In fact, Judge Rothenberg wrote that “It is unclear from the record why the magistrate found no compelling reason to deviate from the statutory child support guidelines.” However, since the parent did not request the Court to deviate from the Guidelines and this issue was not raised in the appeal, the Court of Appeals did not address the argument.

So what do we learn from this case? We learn that Mother should have argued that including her housing and food allowances in determining her child support obligation was not fair or was unreasonable and the court should have deviated from the Guidelines.  If the Court had determined that it was unreasonable or unfair, the court could have determined that all of her housing and food allowances, or maybe a portion, should not have been included as income in determining her child support obligation.

In Colorado, child support is calculated using child support guidelines (formula).  The guidelines are the same throughout the entire state.  Therefore, Denver does not have separate child support guidelines.  The Court can vary from the guidelines, but most Courts, including the Denver Courts, will not vary from the guidelines without an extremely compelling reason. There are exceptions and other complexities to the calculation of child support. For the purposes of this post, I am going to talk about the general factors you need to understand how the Colorado Child Support guidelines work.

Child support is calculated using three major factors:

1. Gross Income: Each parent’s gross income is placed into the formula.  If you are a salaried or full-time hourly employee this is relatively simple.  Bonuses are included.  Overtime is not considered gross income unless it is required as part of employment. Self-employed parties create a challenge for determination of gross income. Tax records and bank statements are usually utilized to come up with an average figure for income.  However, depending on the circumstances of the self-employed individual, there may be disputes as to the party’s gross income.  If a parent is voluntarily underemployed, the Court can base income on potential income, subject to certain restrictions.  There is some complexity around certain sources of income such as stock options, deferred compensation, trust income and in-kind payments such as use of company cars. Support paid to another child of a previous relationship can reduce gross income. There are a multitude of issues that may affect the gross income of a party under certain circumstances.
2. Overnights with the Child(ren): The second number that is placed into the calculation is the number of overnights per year that each parent has with the child(ren).  If you are with your child all day but you return them to the other parent at night, that day does not go into the formula.  Only an overnight counts.  The more overnights you have, the less you will pay in child support and vice-versa. It is important to be realistic about overnights.  Child support is established based upon the parenting plan the parties reach. If one parent receives a parenting time arrangement (for instance 50/50) and does not actually care for the child during their parenting time, the other parent receives less in child support and is still caring for the child more than contemplated. This issue can be brought back to Court in a Motion to Modify Child Support and Parenting Time but it is far easier and less expensive to get it right the first time around.
3. Extraordinary and Ongoing Expenses: The third basic element to put into the child support formula includes any expenses that the child(ren) have on a regular basis.  This could include regular medical expenses or extracurricular activities.  Whoever is paying for medical insurance and/or child care can get credit for doing so in the formula. The formula generally shares these amounts in proportion to the parties’ gross income and credits the party accordingly.

These are the basic factors for determining child support. Circumstances change. A party can request a modification of the initial determination of child support if there is more than a 10% difference in the child support obligation due to a continuing change in circumstances. This post is intended to provide a very basic understanding of child support in Colorado. Each circumstance is different and must be reviewed accordingly. An experienced Denver family law attorney can help you estimate an appropriate child support calculation in your case.

If you have questions regarding child support, contact an attorney at Divorce Matters.

Posted by a Denver Divorce Attorney at Divorce Matters.