In a Colorado divorce or parenting case, the parents owe their children a duty of support. While monthly child support payments are the most visible example of this, the Colorado child support statute includes a variety of other child expenses which the parents share. Included among these shared expenses are medical expenses.
A new case from the Colorado Court of Appeals provides some welcome clarity to the allocation of one such class of expenses, the children’s unreimbursed medical expenses.
Allocation of Child Medical Expenses
C.R.S. 14-10-115(10)(a) provides “the court shall order payment of medical insurance or medical and dental insurance deductibles and copayments.” While health insurance costs are typically known, and therefore included in the basic child support obligation on the child support worksheet, unreimbursed medical expenses are more variable, and therefore typically paid by parents reimbursing one-another for their share of the children’s health care costs.
However, not all of the children’s medical bills are divisible between the parties. C.R.S. 14-10-115(10)(h) provides:
“(I) Any extraordinary medical expenses incurred on behalf of the children shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross incomes.
(II) Extraordinary medical expenses are uninsured expenses, including copayments and deductible amounts, in excess of two hundred fifty dollars per child per calendar year. Extraordinary medical expenses include, but need not be limited to, such reasonable costs as are reasonably necessary for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, and any uninsured chronic health problem. At the discretion of the court, professional counseling or psychiatric therapy for diagnosed behavioral or mental health disorders may also be considered as an extraordinary medical expense.”
What does this mean? Simply that only the expenses in excess of $250 per child per year are allocated between the parties.
Which Parent Pays the First $250 of Unreimbursed Medical Expenses?
What the statute is silent on, however, is how that first $250 of children’s health costs per year are to be paid. If the parties have a Worksheet A, the custodial parent has long been responsible for the costs up to that threshold. Finer.1In re: Marriage of Finer, 920 P.2d 325 (Colo.App. 1996).
But with equal parenting time, the law is murkier, and over the years, family law attorneys in Colorado have taken a variety of approaches, including the parent receiving support pays it, each parent pays their own first $250 of expenses per child, or even that the $250 threshold does not apply.
And all of these approaches were wrong! In Alvis,2In re: Marriage of Alvis, 2019 COA 97. the court considered a case of first impression:
“we must address an issue that has not been decided in Colorado – who bears responsibility for the first $250 of uninsured medical expenses per child per year when the parents share parenting time equally.”Alvis.3In re: Marriage of Alvis, 2019 COA 97, ¶ 2.
In Alvis, the mother argued that due to the equal schedule, all unreimbursed medical expenses, including the first $250 per year per child, should be allocated between the parents proportional to their incomes. The father argued that since he was paying the mother child support, she should be solely responsible for the first $250 of expenses.
The trial court rejected both positions, and instead ruled that neither party could seek reimbursement for any expenses incurred until a total of $250 per child per year had been spent on unreimbursed medical expenses. The Colorado Court of Appeals agreed, reasoning that with shared physical care, the children’s basic needs, including the first $250 of expenses, were to be borne by both parties, but not shared between them.
In other words, those first $250 of expenses are not allocated between the parties, and are instead the responsibility of whichever parent incurs them. Just as a parent is expected to buy clothes and food for their children, and not seek reimbursement from the other, so too are they expected to pay for minor medical expenses w/o reimbursement.
“Thus, each parent must pay uninsured medical expenses incurred during his or her parenting time, until the total for each child reaches $250, at which time the parents may seek reimbursement in proportion to their adjusted gross incomes.”Alvis.4In re: Marriage of Alvis, 2019 COA 97, ¶ 2.
What if One Parent Avoids Paying Health Care Costs?
It’s not unusual in family law for one parent to be more involved than the other when it comes to bringing children to medical appointments. And the parent who does that may well end up paying for more than his/her “fair” share of that first $250 of the children’s unreimbursed health expenses. What happens then? In theory, since a Worksheet B assumes each parent is paying a fair share of expenses, including at least some portion of the first $250 of medical costs, in reality the amount at issue is almost certainly too trivial to pay to litigate.
Consider a situation with equal parenting time, similar incomes, and two children. Each parent’s “fair” share would be about half of the 1st $250 per child, or $250 total (i.e. half of $500). But assume the mother actually brings the children to all appointments and ends up paying the whole $500 per year. She’s “out” by the $250 share that the father was reasonably expected to pay, or just over $20/mo. While she could, in theory, seek a deviation from the child support guidelines to reflect this one-sided allocation of the costs, in reality it would not be worthwhile to pay a lawyer to litigate the issue.
There is a practical concern with the Alvis ruling – a parent who brings a child to the doctor has no way of knowing whether both parties’ expenses actually end up totaling $250 for the year without constantly checking with the other parent after each expense. And if the parents do not communicate well, or did not save receipts for their own minor costs, it’s not easy to determine that threshold.
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