Modifying Child Support
Under Colorado law, child support may be modified if you can show that circumstances have permanently changed. You can also ask the court to modify your child support if the original child support order did not contain a provision regarding medical support (who provides health insurance, who pay the deductibles, etc.).
In order for the court to change your child support, the new support must be at least a 10% change from the old support. This rule is misunderstood. Often people call me and believe that the other person now makes 10% more than they did and they want to modify child support. That is not what the 10% rule is about. To give an example, if the current child support is $500/month, in order for the court to modify that child support, the new child support would have to be at least $50 higher or lower than $500 because $50 is 10% of $500. If the new support would be $549, the court will not modify it.
There is also confusion over whether the modification is retroactive or not. The general rule is that the court can modify the child support back to the date that you filed you motion to modify it. They cannot modify it back any longer than that unless there was a “change in physical care” that was voluntary, a joint decision or a court order. In other words, when the parents change the parenting time from the court ordered parenting time and it was a voluntary or mutual change that would affect child support, the court can make the new support retroactive to that change. I have seen this happen most often when a child reaches the age of 16 or 17 and does not want to spend overnights (or as many overnights) with the other parent. The parents just agree to let that change happen. When the overnights are changed a significant amount, it can affect child support and the court can make the change go back to that date in time that the change occurred. Keep in mind that the court does not have to make child support retroactive to the date the motion was filed, or the date a change in parenting time was agreed upon, but they can do that.
When a parent files a motion to modify child support, they must still abide by the current court order until there is a new court order. Sometimes when the court modifies child support and makes it retroactive, one parent either owes “retroactive support” or has to pay back overpaid child support.
A modification of child support may be in order when:
- One or both parents have a change in income.
- Day care costs have gone up or down.
- Health insurance costs have gone up or down.
- Overnights have changed.
- When one or both parents have had more children.
- When the child (or one of the children become emancipated).
When the parents have more than one child together and one of them becomes emancipated (generally when they reach 19, get married, move out and support themselves or join the military), it might be time to modify child support. I have seen many parents that just assume that they can divide the current support by the number of children to get the “per child” number and then just use that number per child for the remaining children. That is almost never the right number. For instance, if the child support is $500/month and there are two children, then if one becomes emancipated, parents incorrectly assume that the new support must be $250/month. The new support needs to be calculated all over using all of the relevant factors such as the parties current incomes, cost of health insurance, cost of day care, the number of overnights and the number of minor children.
If you believe that your child support should be modified, it is best to confer with an attorney who can help you get a more accurate idea of whether the modification is in order or not.