Crowd of students in black gowns at a graduation ceremony.

Simply being unemployed at the time of a hearing does not necessarily make imputing income to that parent appropriate. And that’s especially true when the parent is enrolled in full-time education.

In Settles,1In re: Marriage of Settles (Colo.App. No. 21CA0867, Feb. 24, 2022) (Unpublished Decision). both parents were full-time students at the time of divorce: the father, a former medical doctor who lost his medical license due to a felony, and was enrolled full-time in a culinary arts program; and the mother was enrolled full-time to be an ultrasound technician.

Finding that both parents were capable of working full-time, despite being full-time students, the trial court imputed an income of minimum wage to each of them, and ordered the father to pay the mother child support.

The father appealed, and the Colorado Court of Appeals reversed, holding that imputing income was improper.

Must Find Voluntary Unemployment For Imputing Income

A court shall impute a potential income to a parent who is voluntarily unemployed or underemployed, but the intent not imputing income to everyone, but “when a parent shirks his or her child support obligation by unreasonably forgoing higher paying employment.” Settles.2In re: Marriage of Settles (Colo.App. No. 21CA0867, Feb. 24, 2022) ¶ 5 (Unpublished Decision).

Imputing Income to StudentImputing Income to Student

But imputing income is the exception to using actual income, and should be applied with caution, supported with sufficient findings. Settles.3In re: Marriage of Settles (Colo.App. No. 21CA0867, Feb. 24, 2022) ¶ 6 (Unpublished Decision).

In this case, the trial court erred by imputing income without any required findings of voluntary unemployment, and also because it failed to consider whether the parties’ status as full-time students exempted them from an income imputation per the child support statute, which provides that a parent may not be deemed underemployed if:

“The parent is enrolled full-time in an educational or vocational program . . . and the program is reasonably intended to result in a degree or certification within a reasonable period of time; completing the program will result in a higher income; the program is a good faith career choice that is not intended to deprive the child of support; and the parent’s participation in the program does not unreasonably reduce the amount of child support available to a child.”

C.R.S. 14-10-115(5)(b)(III)(C)

The Colorado Court of Appeals typically does not select for publication cases which break no new ground. While the Settles case is useful in that it discusses specifically income imputation for full-time students, it’s not earth-shattering, so the fact that it was unpublished is unsurprising.

For more information on income in the context of family support, see our Income article in the Colorado Family Law Guide.

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