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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 that means when parents sign a child support agreement, they too must generally adhere to the guidelines.

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. 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).

Child Support Agreement & Future Modification

Child Support Agreement

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. No. 19CA0420, Feb. 13, 2020) (Unpublished decision). had negotiated child support and maintenance together to come up with a fixed 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 child support 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 child support agreement, 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.

The takeaway? Don’t do it. Period. At Graham.Law we advise our clients to leave child support as is, applying Colorado’s statutory guidelines, and negotiate for other financial concessions instead of trying to include a deviation in a child support agreement. Since it’s doubtful a court would enforce a non-modifiability provision in a child support agreement, even trying to include such a clause merely gives the parents a false sense of security, and may leave one of them vulnerable to losing the benefit of the bargain at a future hearing.

Alimony May Be Non-Modifiable

Finally, it’s worth pointing out that while parties cannot agree to non-modifiability in a child support agreement, 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.

Award-Winning Colorado Springs Child Support Attorneys

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U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.

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