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When divorcing parties have children, a number of crucial decisions must be made. How will decisions be made for the children after the divorce? How will time be shared with the children? Where will they go to school, how will their health care be managed, what will be their ethical or religious upbringing?
These and other questions can be decided in the framework of allocating parental responsibilities and time. Colorado law provides in C.R.S. 14-10-124 that decisions concerning the children are to be made with the children’s best interests in mind. What this means exactly is a subject of some debate among lawyers and mental health professionals. However, it is generally agreed that the focus is on what is best for the children and their future, rather than on what a parent wants or needs. Naturally, when parenting is good, the parent’s wants and needs coincide with what is best for the children.
Two overall decisions are made when dealing with parenting after divorce. The first is the allocation of decision-making authority between parents. There are two option, joint or sole decision making, and these can be applied to the different areas of decision-making. The usual areas of decision making are in the areas of education, health care, religious and ethical upbringing, and the children’s participation in extracurricular activities. If decisions are to be made jointly, then each parent has input into the decision, and neither has veto power. If the decisions, or any one of them, are to be made solely by one parent, then that parent’s decision controls. Sometimes, authority over different areas is split between he parents, with one deciding education, the other deciding health care, and so on. More commonly, the decision are all made jointly or solely by one parent.
If there is a deadlock between parents in a joint decision making arrangement, they will typically be required to attend mediation. Also, a decision maker, who is essentially a tie-breaker between the parents, can be appointed.
The other major decision to be made is how to share time with the children. This is called parenting time in the statutes. An important thing to remember is that usually both parents will experience the new time structure with the children as a loss. If both parents get as much time as possible, they will each have 50%, which is substantially less than 100%, which is what each had prior to separation. There are ways to try to maximize parenting time, even above 50%, without taking time away from the other parent, and these require cooperation. We are happy to help you explore ways to maximize time with your children.
If parents need help deciding what to do, there are many professionals available to assist. These include your lawyers, and also mental health professionals with many years’ experience assisting families reach workable parenting solutions upon divorce. We can help you find these professionals.
Child support is a right of the child, not of the parent. Children are legally entitles to the financial support of their parents. Child support is determined under the provisions of Colorado Revised Statutes 14-10-115. The amount of support one parent pays to the other is essentially a mathematical computation based on a variety of factors.
The calculation begins with the calculation of a base child support amount which is determined by the number of minor children, the number of overnights the children spend with each parent, and the combined gross income of the parties. Gross income for child support purposes is not limited to earnings or even to income as defined by the IRS. Numerous sources of money are included in a parent’s gross income even though they do not constitute taxable income. The child support statute, although phrased in terms of income, really looks to a parent’s incoming cash flow for purposes of support. For example, certain Social Security benefits are not fully taxed by the IRS, but are included in a parent’s income for child support calculation purposes.
There is another quirk to the statute, which is that the Court has the right to impute income to a parent if it appears that that parent is voluntarily unemployed or underemployed. For example, suppose a mother is earning $50,000 per year at the time she and her husband separate. She leaves her job without a compelling reason such as health problems. In calculating child support the Court can credit her with $50,000 in annual income even though she is no longer receiving it. The same is true if a parent is working, but has chosen to work at a lower paying job than one for which he is qualified. The Court can impute additional income to the underemployed parent. The key issue in such determinations is whether a parent is deliberately avoiding his/her responsibility for the support of the children. Providing proof in such cases can be complicated, as it involves both the subjective state of mind of the parent and objective evidence of his/her earning capacity.
Once the base child support is established, it is allocated between the parents pro rata to their income. Adjustments then made to take into account work or education related child care expenses, payment of health insurance premiums, and other extraordinary expenses for the children. After all of that information taken into account the statutory formula produces a guideline child support amount for one parent to pay to the other. Courts can deviate from that amount in unusual circumstances, but do not do so very often. If the parents agree to a lower child support amount than the guideline support amount, they must present the Court with a valid reason for doing so along with assurances that the child’s right to be supported by both parents is not being abrogated.
In addition to setting a child support payment, the statute also directs that Court allocate uninsured/non-reimbursed medical expenses for the children, extraordinary medical expenses (defined in the statute) for the children, and the right to claim a child as a dependent for income tax purposes.
Child support terminates when a child reaches age 19, or is otherwise earlier emancipated (e.g., gets married, joins the military). Child support may be extended beyond age 19 if a child is disabled.
Courts do not have the right to impose an obligation on the parents to provide a child with a post-high school education. However, the Courts will enforce a written agreement between the parents to provide such an education for a child.