Parents make agreements about many aspects of their lives in mediation, including parenting plans and child support. Mediated agreements can be more creative - and meet the needs of the parties - than what the law may otherwise provide for. The potential of a tailored, creative agreement appeals to many divorcing spouses. Parents often feel that they know their situation best, and trust that they can make the best choices on behalf of their own family situations, rather than relying upon an imposed order by the court.
The following topics are frequently addressed in mediation related to the creation of child support agreements. These commonly-acknowledged standards in Colorado are helpful when creating child support agreements in mediation but should not be relied upon in lieu of legal advice. The Colorado Child Support Enforcement Procedures governs child support.
Colorado Child Support Worksheets
Income Determination for Child Support
When Child Support Obligations Cease
College Expense Agreements
Enforcement of Child Support Payments
Colorado Child Support Enforcement Procedures
♦ Gross pretax income of each parent - calculated by looking not only at pay stubs, but investments, retirements, social security, etc. Remarriage: The income of parent’s new spouse does not count for the purposes of calculating child support in Colorado.
♦ Self-employed Party – if a party disputes a self-employed parent’s business expenses, the Colorado family law court must analyze which expenses are legitimate. The family court’s determination may not necessarily be the same deductions as the IRS allowable deductions.
♦ Unemployment / Underemployed - Each parent has an obligation to financially support his/her children. The Colorado family law court may impute income to a person who took a job in bad faith to shirk his/her child support obligations (i.e. pretend that the party earns more than he/she really earns). At a minimum, an able-bodied parent should expect to have minimum wage imputed to him/her.
Colorado minimum wage as of January 1, 2011 is $7.36 per hour ($1275 per month).
Two common situations that provide an exception to imputed income include:
► a parent attending school
► a parent who is a stay-at-home caregiver for a child of the parties who is under 30 months
- Expenses - List all Expenses on Child Support Worksheets. Numerous issues that affect Colorado child support may be included on the child support worksheets:
♦ costs of day care
♦ health insurance
♦ support for children born before the children at issue
♦ extraordinary medical or other expenses
- Waiver of Child Support not Permitted - Child support orders are viewed to be in the best interests of the child. The Colorado family law court will determine whether one parent owes the other child support under Colorado child support law (C.R.S. 14-10-115). While Colorado divorce courts may not allow the parties to waive child support altogether (even if both parents agree) they may allow deviations from the Colorado Child Support Guidelines when parties stipulate or agree for good cause.
TAX CONSIDERATIONS - Child Support is not tax-deductible, however, the dependency deduction can be meaningful as not only a tax deduction but also the basis for "head of household" status, a lower income bracket than "single". The IRS form 8332 is helpful in determining dependency deductions and defines, for taxation purposes, who is the custodial parent:
"The custodial parent is generally the parent with whom the child lived for the greater number of nights during the year. The noncustodial parent is the other parent. If the child was with each parent for an equal number of nights, the custodial parent is the parent with the higher adjusted gross income. For details and an exception for a parent who works at night, see Pub. 501."
For child support orders entered on or after July 1, 1997, unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:
- The parties agree otherwise in a written stipulation.
- If the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen.
- If the child is still in high school or an equivalent program, support continues until the end of the month following graduation. A child who ceases to attend high school prior to graduation and later reenrolls is entitled to support upon reenrollment and until the end of the month following graduation, but not beyond age twenty-one.
Emancipation occurs upon a valid marriage or civil union of a child, when a child has moved from the family residence and is capable of providing for his/her own care and support with his/her own earnings, or as determined by the Court.
Parental contributions towards the payment of college expenses is a frequent topic of discussion in mediation. These agreements must be voluntarily entered into in order to be enforceable in the future. If voluntary agreements are not reached and entered into the final court order, the court will not order continued child support or the payment of college expenses later.
When children of divorcing parents are very young at the time of the decree, parents sometimes avoid these agreements. However, time does pass quickly, and education expenses can be daunting if not planned for.
Options for college planning include:
- Periodic contributions to a 529 educational plan
- Sharing in the parent's portion of expenses as determined by the institution at the time of attendance - determined by percentage of income or pre-determined percentage
- Lump sum contribution by the parents
Colorado Child Support Worksheets are downloadable from the Colorado Judicial Website. The child support worksheets have a button with explanations for the various information needed to complete the forms. If your children are young when you first calculate what the child support obligation is, you may need to recalculate several times until the obligation is fulfilled. Being familiar with the child support worksheets can be tremendously useful. Mediation participants are encouraged to review the worksheets and be familiar with the form.
Sometimes a parent withholds child support for reasons that seem justified to the obligator, but that may not be apparent or reasonable to the parent who should receive it. Often in these situations, mediation can often be extremely helpful in addressing concerns of the parties.
A common argument for non-payment of child support is an obligator's reasoning that other payments have been paid on behalf of a child, and those should off-set the child support obligation. However, Colorado state child support law prohibits "in-kind support" (paying for activities or expenses in lieu of paying child support). The obligor cannot buy school supplies, clothing, toys or give money directly to the children rather than giving money to the parent owed the money directly as a result of a child support order. Colorado family law courts treat such expenses as gifts to the children.
Colorado Family Support Registry is a centralized registry for collecting child support and maintenance. The State of Colorado tracks and records child support payments for cases filed with the agency and has the ability to take the following steps for non-payment of child support:
- garnish wages
- suspend obligator's driver's license
- place a lien on tax returns
- suspend professional licenses
- place the obligator in jail for non-payment
The common-knowledge standards identified above should not be construed as legal advice. Litigation strategies and legal assistance should be obtained from an attorney licensed in Colorado. As a family mediator, I am familiar with these standards, and may generate options for settlement while keeping the above in mind, but I have no authority to impose decisions on my clients and am prohibited from giving legal advice.