Here is an example of the circumstances where the law has now become unclear:

Lets say that Bobby had been residing primarily with mom and now that he is 15 years of age, both parents have agreed to let him live primarily with Dad.

So, Bobby goes to live with Dad. Dad makes significantly more money than Mom and has been paying Mom child support since their divorce. Mom agrees that since Bobby is now primarily with Dad that he can stop paying her child support. Dad stops paying child support as soon as Bobby begins to live with him. They have a verbal agreement that Mom will not have to pay child support. They do not make any changes with the Court.

Two years later, Mom has been promoted and is making more money. Dad files for a modification of child support with the Court. He states that Mom owes him child support and that she owes back child support from the day Bobby moved in. When the child support calculations are done, in fact, Mom does owe Dad child support. The question is whether she owes Dad from the day he filed his Motion to Modify (3 months ago) or if she owes back support from the day Bobby moved in with dad two years ago? Big difference for Mom.

A somewhat similar set of circumstances occurred in the recent Court of Appeals case “In re the Marriage of White and Martin, No. 09CA0596 (Div. VI, Court of Appeals, June 10th, 2010)”. In White, the Court held that the Mother had to pay from the date the Father filed his Motion to Modify, not from the date the child changed residences.

This opinion disagrees with a former Court of Appeals case, “In re Marriage of Emerson, 77 P.3d 923(Colo. App. 2003)”. In Emerson, the Court held that under Colorado Revised Statutes 14-10-122(5), if the parties agree to a change of physical custody, that the child support of the obligor under the existing child support order, is modified from the date when physical care was changed. The Court found that the Mother became obligated the moment custody changed and thus the statute applied.

In the White case, the Court found that the mother was not obligated to pay child support under the existing child support order. Only the Father was. So the statute did not apply to her under the clear language of the statute and the general rule that the change in child support only starts from the day the Motion to Modify is filed applies.

So, now we have two cases from the Colorado Court of Appeals that disagree. We will have to hear from the Colorado Supreme Court or from the Legislature to clear this up. In the mean time, one can argue either way.

We often get calls from people that are planning to move to Colorado and they want to know if they can file for divorce right away.

Ninety Day Rule
Colorado law allows you to file for divorce once you have been domiciled in the state for 90 days.

The question then becomes; what do you have to do to establish domicile. Domicile and residency are pretty much synonymous. Both are determined by the intention of the individual in question. The Court will look to acts and other evidence to support such an intention.

For instance, if you rent and apartment or purchase a home and are living primarily in Colorado, you have a Colorado drivers license, your children are enrolled in school in Colorado. These are all indications of residency.

Once 90 days has passed, you may file for divorce. It is even possible, through case law, for someone not a citizen of the United States to be entitled to a decree of dissolution of marriage in the Colorado Courts if that person meets the resident/domiciliary requirements as set forth in the statute.

What about the other party that remains out of state. Does the Court have jurisdiction over him/her?
In order to get jurisdiction over the other party to the Dissolution of Marriage Action that party must have sufficient minimum contacts with the state. The following are ways that this minimum contact can be met:

1. Filing a joint Petition for Dissolution
2. By executing a waiver and acceptance of service by the out of state party
3. Personally serve the out of state party while they are in Colorado
4. Engaging in sexual intercourse with the out of state party within the State of Colorado if there is a paternity suit or a claim for child support.
5. If the party owns real estate in Colorado that is subject to the Dissolution Proceeding.
6. If there has been an act of domestic violence in the state
7. If there is a matrimonial domicile within the state
8. In a child custody proceeding, if Colorado is the home state of the child at the commencement of the proceeding.

It is important to speak to an attorney if you have questions about the Court's jurisdiction over the spouse who is not living in Colorado. You will need to look at all the facts to see if the Court in Colorado will have jurisdiction over the non-resident spouse.

In a typical Divorce matter, child custody is handled by the District Court that is handling all matters pertaining to the divorce. The District Court Judge is required to take action in the best interests of the children but does consider the interests of the parents as well. However, there are instances where the District Court looses it's jurisdiction over child custody. This occurs when there is a Dependency and Neglect Action (DNN) filed by the State regarding the child at issue in the Divorce matter. When this occurs, all child related issues including, parenting time, decision making and child support will be exclusively handled by the Juvenile Court system. The attorneys for the parents can continue to represent the parents in the Divorce matter in District Court and they can represent the parents in the DNN Juvenile matter but their ability to advocate for the parent regarding custody is significantly reduced once the custody issue has entered Juvenile Court.

The Juvenile Court, like the District Court, must do what is in the best interests of the children but their second priority is the interests of the state, not the parents. The Juvenile Court is charged with deciding if the child is "dependent" or "neglected". The focus of the Court on the parents is only as needed to decide the status of the child. There is little focus on the rights or needs of the parents except that re-unification of the children with the parents is a priority of the state because, if re-unification is possible, it is in the best interests of the child. However, even if the parent does everything they are asked to do by Social Services, there is no requirement to give the child back to the parent if the state believes that there is still a danger to the child. The State has the right to restrict parenting time as well as bring a relinquishment action to permanently remove all parental rights.

When the State Steps in
How does a Dependency and Neglect Action get started? There are certain individuals that are required by law to report possible child abuse or neglect to the state (Social Services) when they have a "reasonable cause to know or suspect that a child has been subjected to abuse or neglect or if they have observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect". There are a number of professionals that fall into this category. For the purposes of this blog entry I will only name a few key professions. They include, therapists, doctors, public or private school officials (teachers) or employees, police officers and clergy members, child and family investigators, Veterinarians and animal protection officers. (You can see a full list in Colorado Revised Civil Statutes, Section 19-3-304)

Examples
So, if your child goes to her teacher and tells the teacher that her father inappropriately touched her or beat her or if the child looks significantly neglected, that teacher is required to report these facts to social services. The same would be true if a child revealed information to a therapist that lead the therapist to reasonably believe that the child was being abused or neglected. Another example is if the police are called during a domestic dispute and they find that there are conditions at the home that make it unsafe for the children. I have seen this happen when the police find the mother severely intoxicated or find drug paraphernalia in the home or find sanitary conditions that are at the level of being unsafe conditions for the children. The police are obligated to report a reasonable belief that the children are unsafe by reason of abuse or neglect. Another possibility is that during the Divorce action, a Child and Family Investigator is appointed by the Court to develop a custody recommendation and during their investigation, perhaps in speaking with the child or with a third party, or just in viewing the parents home, develops a reasonable suspicion that there is child abuse or neglect. The Child and Family investigator is obligated to report their concerns to social services immediately.

Different ways the State can step in

Informal Adjustment
Once there has been a report to Social Services, there is usually a Social Services investigation. The investigator can recommend an Informal Adjustment which means that Social Services is going to try to intervene without bringing a formal DNN case. If this is the case, the District Court should be able to maintain their jurisdiction in the case and the Juvenile Court will not get involved. If this occurs, my recommendation is to do everything that Social Services asks for to avoid having the case be brought in Juvenile Court. Perhaps, in working with Social Services the parents can stipulate to a custody settlement in District Court that incorporates the Social Services plan but also considers the needs of the parents.

Bringing a DNN Action
Social Services can decide following their initial investigation to bring a Dependency and Neglect action (DNN). Once this occurs, the custody matter will completely handled by the Juvenile Court inside of the DNN action. The State will have a great deal of control and power in the case. There will be a Guardian Ad Litem assigned to represent the child's interests and The County attorney will represent the State's interests. The Respondents are usually one or both parents and the parent's interests are the lowest priority of the Court.

Records from a DNN Action
If you are in a Divorce action in District Court and there has been a prior DNN action and you want records from that action to use in the Divorce action you may find it difficult to get access to those records. The policy is that the parties to a DNN action need to be able to do their treatment plan to re-unify the family without the fear of records being used against them. So as an attorney for the Mother in a Divorce Action, I would be able to get the records in the DNN that pertain to Mom but I would not be able to get the results of the father's psychological evaluation or the child's evaluation from the DNN Case.

Summary
If a DNN action is brought, you and your attorney will loose quite a bit of control over the disposition of Custody issues. You will be relying on the state to investigate and propose solutions. In this case it is best to cooperate with Social Services. However, If you feel abuse or neglect is occurring when your child is with the other parent, then perhaps a DNN case is warranted. You may want to have your child work with a therapist to get to the facts surrounding what occurs at the other parents home. In any event, it is important to understand that there is a distinct difference in how the custody case proceeds if it is removed to the Juvenile Court by a DNN petition.

Here in Colorado, Child Support Payments are calculated using a formula. The Formula includes the number of overnights you have with your child, your gross income and an expense calculation for the child's needs.

Gross income is an important piece of the formula and you want to make sure that it is calculated correctly. So, the question arises...what about overtime pay? Is it part of the calculation for gross income?

First lets talk about what gross income includes. It includes income from any source including the following:

• Wages, Salary and Tips
• Commissions
• Independent Contractor payments
• bonuses
• dividends
• severance pay
• pensions and retirement benefits
• royalties, rents, interest
• trust income
• annuities
• capital gains
• social security benefits
• worker's compensation benefits
• unemployment insurance benefits
• disability insurance benefits, or health insurance benefits to the extent that they replace wages or provides income in lieu of wages
  
• monetary gifts or prizes
• distributions from partnerships, limited partnerships or closely held corporations or LLC's
• alimony or maintenance received

As you can see, gross income is almost any form of income that you can imagine receiving. However, when it comes to overtime pay there is an exception.

If overtime is REQUIRED by your employer IT IS CONSIDERED INCOME. However, if you work overtime by choice (meaning more than 40 hours or more than what would otherwise be considered to be full-time employment) then the overtime pay you receive IS NOT CONSIDERED part of your GROSS INCOME for the purposes of calculating child support. If you work additional jobs over and above full time employment that income is also NOT CONSIDERED part of your GROSS INCOME.

The exception to this rule is for people that are self employed. If you are employed by a closely-held corporation of which you are an owner and overtime is necesitated by the responisbilities of your position, your overtime will be held as required and will be considered as part of your GROSS INCOME. In the case of "In re Marriage of Rice, 987 P.2d 947, 948 Col. App. 1999", the Appelete Court based its holding on findings that the father was his own boss and had no supervisor to command him to work overtime, the father was not able to perform his job duties unless he worked overtime, and the father's failure to work overtime would result in penalties to the corporation that would hurt him financially as an owner of the corporation. Id.


Also, monies received as child support payments are not included in gross income.

For all divorces on or after July 1st, 1997, the Court will not require that the parties pay college expenses. Child support will continue until 19 years of age. At 19 the child is considered emancipated and the party paying child support can petition the court to end child support payments.

However, divorcing parents can agree to pay for college expenses as part of their separation agreement and final decree. Once the Court orders incorporate the agreement for college expenses that agreement becomes a legal judgement and can be enforced as a Court Order. In other words, if the expenses are not paid the party withholding payment can be brought up on contempt of court charges for not doing so. This is a much heavier penalty that just a mere breach of contract. The Court has broad powers to enforce a Court Order.

It is important to note that any agreement for support of the child (including an agreement to pay college expenses) can be modified by the Court. The party agreeing to pay college expenses can later come back to the Court and argue that there has been a substantial and continuing change in circumstances from the time that the agreement was made. If they can prove this to the Court, the Court has the power to adjust the amount of the payment in consideration of the change in circumstances.

For divorces that were final before July 1st, 1997, there may be a Court imposed requirement for parents to pay reasonable college expenses up to the age of 21. However, the Court cannot order that a parent pay more for these educational expenses than he or she would be required to pay for child support. The Court will not require both child support and college expenses. It is only one or the other. The Court Order for payment of reasonable college expenses can be modified the same way child support may be modified; on a showing of substantial and continuing changed circumstances by the party seeking the modification.

In Conclusion, it does not matter whether the requirement to pay college expenses is Court ordered (prior to 1997) or if it is by agreement and incorporated into the divorce decree (after 1997), in both cases the agreement/requirement to pay college expenses can be modified if there is a substantial and continuing change in circumstances of the party seeking the modification. What constitutes a substantial and continuing change is a question of fact to be argued before the court.