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Deviation From Child Support Guidelines Cannot Be Permanent

With limited exceptions, courts are required to apply Colorado’s Child Support Guidelines when determining an appropriate amount of child support.

And while parents may agree to deviate from the guidelines, the court may not accept the agreement absent making the findings required by the child support statute. And if the court does accept a deviation, that deviation is not permanent – either parent may in the future seek to modify support to comport with the guidelines. MGC.1In re: Interest of MGC, 228 P.3d 271 (Colo.App. 2010).

Agreement Cannot Restrict Future Modification of Child Support

In a 2020 decision, the Colorado Court of Appeals recently reminded us that there is a large body of law in Colorado which prevents parents from making child support non-modifiable. The parents in Corniel2In re: Marriage of Corniel & Brown (Colo.App. 2020) (Unpublished decision). had negotiated child support and maintenance together to come up with a set amount of support, $1500/mo. (Such negotiations are not uncommon when compromises are made over what a spouse’s income should be).

However, the problem with the agreement in Corniel is that it purported to bar a court from modifying child support unless a specific triggering event was met, specifically either parent’s income exceeding a set threshold, the payor’s income dropping below a different threshold, or the payor exceeding 125 overnights.

The mother subsequently filed a motion to modify support, alleging that the father’s income had increased substantially, but the trial court denied the motion on the grounds that the agreement deprived the court of jurisdiction to modify support as father’s income did not exceed the cutoff per the agreement.

The Court of Appeals reversed, citing both the C.R.S. 14-10-112 provision that a non-modifiability agreement does not apply to child support, as well as the case law on point. The court held that the starting point for a modification must be the statutory guidelines, not whether the children’s needs were being met under the current order. ¶ 11.

In a modification proceeding, the court is required to follow Colorado law, not the parties’ prior agreements, and that’s true even if the original agreement was a deviation from the guidelines. ¶¶ 12-13.

For a complete discussion of the standards to modify child support in Colorado, see the Child Support Modification & Termination article in the Colorado Family Law Guide.

And for a discussion of the law surrounding agreements to restrict future modification of child support, see the Agreements to Limit Child Support Modification article in the Colorado Family Law Guide.

Alimony May Be Non-Modifiable

Finally, it’s worth pointing out that while parties cannot agree to make child support non-modifiable, the same is not true for spousal support. Spouses can agree to non-modifiable maintenance, or to limitations on modification. However, if maintenance is imposed by a court instead of by agreement, it remains modifiable if there is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” C.R.S. 14-10-122(1)(a).

For details as to the modification of maintenance, see the Maintenance Modification & Termination article in the Colorado Family Law Guide.

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