In part one of this post, we introduced Rachel Anderson, family attorney at Anderson Allen, LLC. Rachel works with divorcing couples in Colorado and has experience in all types of family law matters including high-conflict and complex cases, allocation of parental responsibilities, paternity, relocations, child support, spousal support, property division, modifications, and post-decree matters. In the second part of this interview, Rachel answers top questions about spousal and child support in Colorado. As you review these responses, note that the specifics of your divorce are unique. This post does not constitute legal advice. For specific guidance, talk to an attorney directly by scheduling a free consultation.
How do I know if my case could be subject to spousal support?
Spousal support, also called maintenance, can be awarded in a divorce case if a party cannot independently provide for their own reasonable monthly needs, either through property allocated to them in the divorce or through appropriate employment.
To avoid the need for spousal support, the Courts can decide to allocate more marital property to one party to allow them to support themselves. If that type of property award is not possible or appropriate, the Court will consider a number of factors, including each party’s financial resources, their income, their employability, and the length of the marriage. A statutory guideline formula provides the court with a starting point for determining a monthly payment to the lower-earning spouse. Generally speaking, the formula results in an amount of support equal to 40% percent of the parties’ combined monthly adjusted gross income minus the lower-income party’s monthly adjusted gross income. If the calculation results in a negative number, the amount of support is zero.
I am not currently working, what does inputting an income mean in the context of the spousal support calculation? How do I know if I will be imputed income; are there any exceptions?
When calculating spousal support, Colorado law allows the Court to impute income for a party who is determined to be voluntarily under-employed, or unemployed. The Court can use a party’s potential “imputed” income in the support calculation equal to the amount they could reasonably earn if employed to their fullest capacity, considering their education, training, and employment history.
However, the law says the Court should not impute income to a party if they are engaged in good faith efforts to obtain work experience, education, or training that is reasonably intended to result in higher income in the foreseeable future. Lastly, a party cannot be imputed income if they are physically or mentally incapacitated or caring for a child of the relationship under the age of thirty months.
What are the major factors that affect the child support calculation that I should be aware of?
In applying the statutory child support guidelines, a court will consider:
- the party’s gross monthly incomes (which includes wages as well as other sources)
- any spousal support awarded
- the number of overnights awarded to each party in the parenting time schedule
- the child’s portion of health insurance premiums paid by each party
- any extraordinary expenses related to the child (including childcare or recurring out-of-pocket medical expenses)
Can child or spousal support be modified?
Yes. Circumstances can and often do change. Child support can be modified when there is a substantial and continuing change in circumstances that would result in a variance of at least 10% in the amount of monthly child support, according to the child support guidelines. Maintenance can be modified when there is a substantial and continuing change of circumstances that makes the original award unfair or inadequate.
Modifications can only be made for support payments due after the filing a motion, except for changes to child support due to a mutually agreed upon change of physical custody of the child. In the latter case, the modification can be retroactive to that change.
Even if child or spousal support can be modified, how often are orders actually modified?
In my experience, Courts are more inclined to modify child support than they are maintenance. Maintenance modifications are typically applied conservatively, especially if the Court considered a disproportionate award of marital property at the time of the divorce. Therefore, when negotiating for or making a request at trial for a particular maintenance award, one should never assume the amount can be changed at a later date.
I have heard that my spouse will be required to pay for my legal bills since I do not have an income. Is this true?
Colorado law considers the expenses of the divorce process itself, including attorney fees, and marital expenses to be shared by the parties. Attorney fees are often decided last, after all other financial determinations have been made. If the Court decides that sufficient marital property and spousal support were awarded to the lower-earning spouse, they may simply decide that each party is responsible for their own attorney fees. However, the Court will consider the amount and reasonableness of fees charged by each party’s attorney when deciding how to fairly allocate those between parties.
We know that, while these might be top questions on your mind, there are likely others that you have specific to your circumstances. In fact, sometimes getting answers to the big questions results in more small questions related to your specific settlement strategy. Connect with Rachel Anderson, Family Law Attorney or Amy Mahlen, Certified Financial Planner, and request a free consultation to support your divorce process.