You may run into the dilemma of not being able to afford to pay your child support payments. Perhaps you lost your job, decided to go back to school, you were in a car accident, you now have the children 100% of the time and have not had time to take steps to modify the child support, or there is another financial circumstance that changed for you.
In Colorado, courts order child support based on a formula that includes both parents’ incomes (and sometimes a parent’s potential income), the number of overnights allocated to each parent, the cost of the child’s portion of health insurance, daycare costs, and extraordinary expenses. You can calculate the child support on the Colorado State Court website or you can ask an attorney to calculate it to see what the child support payments should be. Talk to a lawyer about including one of both parents’ “potential” income in the calculation.
If you cannot pay the child support you owe, the first step is to talk to the other parent about whether they will agree to a modification of support. If the other parents agrees, you can have a lawyer draft a written stipulation to be filed with the court and approved by a judge as the new order. The signed stipulation is filed in your divorce or custody case. Unless and until there is a new court order, the prior order is still in effect. Do not pay a different amount until there is a new order because (1) you are in violation of the original order; and (2) the other parent may deny that he or she agreed to the new amount and that parent could collect on all the back child support together with interest at 12% per annum compounded monthly from the date that each payment was owed.
If the other parent does not agree to a modification, you may want to talk to a lawyer about filing a motion to modify the child support amount. Once the motion is filed, there will be an exchange of financial information. The court may hold an initial status conference with the parties and attorneys to discuss the financial disclosures, discovery issues, and the possibility of experts that may be needed in the case. Your lawyer may prepare you for the initial status conference. At the initial status conference, the case is usually set for a final hearing in front of a judge or magistrate.
At the hearing, the court can modify the child support amount if there is a change in circumstance that changes the amount of child support that you would have to pay by 10%. In most circumstances, the child support will be modified back to the date that the motion is filed. If there is an agreed upon change in physical custody, the child support is modified back to that date.
For questions, please contact Gregg Greenstein.