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So You Think You've Agreed to Modify Child Support

Often times effective co-parents agree between themselves to modify child support. This may occur for a variety of reasons; changes in income or expenses, agreements to change parenting time, or simply to ease the burden on a parent in times of financial stress. While working collaboratively with the other parent is always in the child's best interests it is absolutely integral that parents obtain the Court's approval and a new support order when making changes. The consequences can otherwise be dire and make a good co-parenting relationship go bad.

The first thing for parents to know is that child support obligations cannot be modified by agreement of the parties. This is well-settled law going back as early as the 1915 case of Laws v. People, 151 P. 433 (Colo. 1915) and reiterated time and time again. See, e.g. Wright v. Wright, 514 P.2d 73 (Colo. 1973); IRM Michaletti, 796 P.2d 54 (Colo. App. 1990); IRM Chalat, 112 P.2d 47 (Colo. 2005); Combs v. Tibbbits, 148 P.3d 430 (Colo. App. 2006); IRM Beatty, 279 P.3d 1225 (Colo. App. 2012)(also discussing equitable estoppel). This principle is also codified in the Child Support Statutes which hold that agreements limiting modification support of children are not enforceable and that the Court may only deviate from the guidelines after making specific written findings justifying the same. C.R.S. §§ 14-10-112(6), 14-10-115(8)(e). Put simply, the Court has to approve any agreement regarding child support because it is obligated to protect the child's best interests and can only do so with good reason. IRM Chalat, 113 P.2d 47.

Second, the Court is limited in its ability to modify child support retroactively. Generally, the Court can only modify child support payments that become due after a parent files a motion to modify child support. The only statutory exception is found in C.R.S. § 14-10-122(5), which allows a Court to modify support going back to a "court-ordered, voluntary, or mutually agreed upon change of physical care" occurring within the past 5 years. Even this exception is not clear, however, because Court's have not plainly determined what constitutes a "change in physical care," leaving parties to fight over whether any change in overnights counts or only a substantial change and it does not apply if it would work a substantial hardship on a party.

Third, it is well-settled that each missed or incomplete child-support payment becomes a final money judgment when it is due and not paid. C.R.S. 14-10-122(c). As the Colorado Supreme Court held in In Re Serfoss 642 P.2d 44 (Colo. App. 1981), "The court has no power or authority to cancel past due payments under a valid support order." Once something becomes a judgment there are very limited ways to get around it, namely appeals or extraordinary circumstances. So if you missed a payment, whether by agreement or not, you have a judgment against you that likely cannot be undone.

So what does this all mean in practice? That agreement you thought you had in not enforceable. Not only that, even if the Court really thought it was a good deal and very fair, it has little to no legal authority to give affect to the agreement. Even more, any amounts not paid are actually a judgment against the non-paying parent that accrue interest at 12% per annum compounded monthly! Those amounts add up quickly and can provide heavy leverage if any disputes arise in the future.

Fortunately, the answer to this quagmire is relatively simple; if you've agreed to modify child support, get the Court to approve it! Simply provide the Court with a Stipulation to Modify Child Support a Proposed Support Order and explain why the agreement is in the child's best interests. In practice, most courts will enter a Support Order in any amount the parties agree to. The parties should certainly be clear with the judge on what the guideline support order would be and provide good reasons for deviating from that amount, but generally speaking judges will follow your lead with any reasonable basis presented and enter a new support order consistent with the parents' agreements. This might take a little effort and expense now, but it is almost certain to prevent huge effort, expense, and litigation in the future.

If you are on the bad end of an unenforceable agreement to reduce support, stay tuned for a blog post on how the doctrine of equitable estoppel might provide some relief under exceptional circumstances (or give us a call and see if we can help).

As you can likely see these matters get complicated. There are many other considerations that come into play and options for co-parents that might find themselves faced with unenforceable agreements. If you have any questions about your specific situation do not hesitate to call the attorneys at Scardina Law and let us help you navigate the complex world of child support modifications. It's what we do!

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Scardina Law

Scardina Law
1245 E. Colfax Ave.
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Denver, CO 80218

Phone: 303-502-5540
Fax: 303-845-5594
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