Your Family Support Obligation & Covid-19
Even before Gov. Polis issued a statewide stay-at-home order, many families were already struggling with how to handle child custody orders and Covid-19. The updated stay-at-home order makes it clear that parenting exchanges are not suspended, and that parents should be compliant with any court orders. One issue that has not yet come up is child support and maintenance or alimony.
In the wake of Covid-19 and the statewide stay-at-home orders in Colorado, many working families may be facing reduced hours or even layoffs as businesses struggle. The unemployment rate in Colorado is expected to double in the next three weeks alone according to the Denver Post, and the labor department is still waiting on federal guidance as to who is eligible for benefits during the pandemic.
As more and more people feel the financial strain of Covid-19, the question will become what do you do if you are left without the ability to pay child support or maintenance? Right now, the issue of support has not been addressed directly by any executive orders from the governor so the expectation is people stay compliant with any court orders. Failure to pay amounts owed will result in arrears that can result in contempt issues.
People subject to a support order may consider filing a motion with the court to modify support orders but it is not guaranteed that the court would grant any changes based on Covid-19 related financial difficulties. Even agreements with the other parent or spouse may not be a guarantee.
Can Child Support Be Modified Due To Covid-19?
Short answer is: it depends. So what does it depend on?
After a divorce case or allocation of parental rights case is resolved, the court will still maintain the ability to make changes to child support. Any modifications are still subject to the child support guidelines. Under Colorado law, the court can modify child support in two situations:
- A “substantial and continuing” change in circumstances resulting in a 10% change in the amount of child support owed, or
- The current order does not contain a provision regarding medical support.
It’s unlikely that the second option would apply as a result of Covid-19, so any motions to modify as a result of the pandemic will probably use the first option as justification.
Generally speaking, Colorado law states that a temporary change in economic circumstances does not qualify for a modification of child support even if that temporary change results in a 10% increase or decrease in the support owed. In order to justify a modification, that change needs to be a “continuing” change, not just a short term issue.
Parents may try to negotiate some sort of reduction or change without involving the court but that may not actually protect the parent owing support down that road. Agreements solely between parents on child support are not binding on the court unless adopted by the court. And especially parents should not agree on their own to opt of the child support guidelines without obtaining court approval of the agreement.
Presently, it is unclear how long we will feel the economic effects of the pandemic. In past cases, courts have not considered brief periods of temporary unemployment to be “continuing” enough to warrant modification, so short term unemployment or reduced employment may not be enough to justify a change. The only way to find out is to file a motion and see what the court does. Likely, with the backlog in the courts, it would take months to get a hearing anyway, by which time it would be obvious if the income reduction were a lasting one.
For a more complete discussion on modifying child support in Colorado, see our Child Support Modification & Termination article on the Colorado Family Law Guide.
Maintenance (Alimony) & Coronavirus
Just like with child support, whether or not you can change maintenance will depend on a few factors.
First and foremost, is the maintenance modifiable to begin with? In Colorado, spouses can agree to make support non-modifiable – meaning the court cannot make changes down the road. In that case, a spouse must pay the amount agreed to no matter what is going on in the world.
If a judge ordered maintenance at a final orders hearing, it will always be subject to modification under Colorado law. If alimony is modifiable, the legal standard to change it is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” C.R.S. 14-10-122(1)(a).”
Note that the language for modifying child support and spousal support is very similar – both require a “substantial and continuing” change. The big difference is that the maintenance standard does not specify a 10% change in the amount paid before the court will make a change. Support will be modified if the spouse requesting the change makes a compelling argument as to the “substantial and continuing” change without the statute defining what that means.
As with child support, the problem is that a short-term cash crunch, even if a substantial reduction, may not qualify for a maintenance modification, as it may not be a “continuing” change.
For more information on how maintenance can be modified, see the Maintenance Modification & Termination article on the Colorado Family Law Guide.
It’s hard to say if Covid-19 is novel enough that the courts will deviate significantly from past decisions. Judges may treat financial difficulties resulting from the pandemic differently since states are taking unprecedented steps to limit the spread.
Chief Judge Bain of the 4th Judicial District made it very clear when he issued a new order:
“All Parties are advised that all existing court orders, including parenting time and parenting exchange orders, are not suspended by the Stay-at-Home Order issued by Governor Jared Polis, and shall continue to be followed unless otherwise modified by the court or agreement of the parties.”
Ultimately, if you cannot pay your support obligation, you need to pay as much as you can. You also need to cut the bloat wherever you can – that means cancel Netflix & Disney+ or whatever extra streaming services you pay for. The courts will expect you to cut out every little extra thing you can in order to meet your court ordered obligations, and do not look kindly on those who default on payments without making every effort to meet the obligations. Any unilateral reduction in payments without the other spouse’s consent risks a contempt of court proceeding.
Bottom line is that unless something changes, people need to follow through on their obligations and keep paying the support ordered. And if you truly can’t afford the amount, look into filing a motion to modify child support and maintenance.