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Trying to determine what is a reasonable child support or maintenance payment can be quite intimidating, as the Colorado statutes go on for pages regarding child support and maintenance payments depend on the individual cases and facts. This article is intended to de-mystify the process and highlight the considerations in determining child support or maintenance.
Maintenance, also known as spousal support or alimony in other states, only applies in divorce cases. If the parties have never been legally married or common-law married, then neither spouse can present a claim for maintenance.
There are two types of maintenance – temporary and permanent. Temporary maintenance is essentially a “quick fix” while the divorce action is pending. If temporary maintenance is awarded, it stays in effect until the divorce is over. Permanent maintenance, on the other hand, is spousal support that continues after the marriage.
In an attempt to streamline the judicial process for determining temporary maintenance, there is a formula for couples whose annual income is less than $75,000 per year. Temporary maintenance is 40% of the higher earning spouse’s monthly gross example minus fifty percent of the lower earning spouse’s monthly gross income. Where the combined gross income exceeds $75,000 per year, the formula does not apply and it is determined using the same principle for permanent maintenance. This formula applies to temporary maintenance only, and not permanent maintenance.
There are two standards that must be met before a party is entitled to receive maintenance. First, the requesting party must show that they do not have sufficient assets to provide for his or her reasonable needs, nor that they have the ability to earn sufficient income to support their standard of living. Once the party has established that they are entitled to an award of maintenance, they must present evidence relating to specific factors which determine the amount and length of maintenance.
These factors include the financial resources available to the requesting party (for example, distribution of marital property), the time needed for the requesting party to either obtain education or training to put themselves in a position where they can independently support themselves, the standard of living enjoyed during the marriage, the length of the marriage (i.e., long-term marriages are more likely to be maintenance cases rather than short term marriages), the physical condition of the requesting party (for assessing ability to work), and the prior education and work experience of the requesting party. Additionally, the court will consider the other spouse’s ability to pay maintenance. One spouse may qualify for an award of maintenance, but if the court finds the other spouse legitimately doesn’t have the financial ability to pay maintenance, then maintenance will either be minimal or nonexistent.
Maintenance is usually determined before child support is calculated, as a maintenance award will affect how much child support is awarded. In Colorado, child support is calculated using a formula that is based off of the gross incomes of the parties and the number of overnights spent with the child. While the child support statute lists pages of tables to calculate child support, most courtrooms and family law attorneys will have the “child support calculator” software which simplifies the math. If you do not have access to the software, an Excel spreadsheet version is available at http://www.courts.state.co.us/chs/court/forms/domestic/electronicworksheets.htm
The basic idea behind the child support calculation is that if two parents earn the same amount of income and spend equal amounts of time with the child(ren), then there should be no child support from one parent to the other. However, if the incomes differ or the parenting time is not equal, the child support obligation will change accordingly.
At first, some people may think it’s unfair to pay a high child support obligation when they only have limited parenting time, for example every other weekend. The formula takes into consideration that because the other parent has more time with the child(ren), therefore he or she incurs more “kid expenses,” like dinners, clothing, etc.
Another frequent objection from high income earners who accordingly pay high child support is that “it doesn’t cost that much to raise a child.” Colorado law states that the child should be entitled to the same standard of living had the parties stayed together, and thus the child support calculation takes this into account.
There are additional items that get factored into the child support obligation, including medical insurance, daycare costs, extraordinary expenses, and maintenance. Maintenance is included as income to the party receiving it, and is deducted from the paying party’s gross income.
After child support is calculated, there may be some instances where it is necessary to “deviate” from the guideline and use a different figure for child support. Usually these deviations are somewhat limited, and a Judge will require good cause before deviating from the child support amount. Some parties try to agree on a child support figure independently of using the guidelines. For those that do, there is a possibility that the Judge may reject the agreement if it is not in the ballpark of the guideline amount.
Christine Nierenz is an associate attorney with The Harris Law Firm, P.C., specializing in family law. She can be reached at 1125 17th Street, Ste. 1820, Denver, CO 80202, christine@harrisfamilylaw.com.
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