The Frustration and the Decision to Move Forward or Not:
I speak to a number of people (mostly women) every month about bringing an action against their former spouse for back child support or maintenance.  Sometimes these women have sued before and been frustrated by their inability to collect the judgement. They want to know what it would take and what it will cost them to actually collect the back support and force their ex to resume payments.

I always have a straight conversation with people about the realities of motions for contempt of court, support judgments and garnishment options. It is important to make a good business decision about spending the money for attorneys fees and court costs to collect child support or maintenance owed .  The law suit is only worth the time and money if you can collect sufficient money to cover the fees and costs of the litigation and then some.  You also need to look at the psychological cost of the litigation process itself.  How much do you need the funds?  Is it worth it in terms of the affects on co-parenting?  All these factors need to be considered before proceeding.

Legal Issues and New Case Law:
There are a number of different ways to address unpaid child support or maintenance:

1. Child Support Enforcement:  You can ask Child Support Enforcement to assist you in collecting child support or in  collecting child support and maintenance if you are owed both.  They will not assist you if you are only collecting maintenance.  Pro:  You do not have to pay them to help you and they have the power to revoke the drivers license of the party not paying.  Con:  They are often satisfied to get very low payments and they give people lots of chances to comply.  We saw a case where the ex was asked to pay $25.00 per month on 40,000.00 in back child support.
2. Support Judgement and Collections Action for Back Child Support or Maintenance:  You can hire an attorney to go to court and get a Support Judgement that shows the amount of back child support or maintenance owed.  With this Judgement in hand you can proceed to collections.  You can garnish wages if they are an employee. (can be between 55% to 75% of their  salary depending on the circumstances).  One factor to consider in garnishing wages is to look to see if there is already a garnishment in place.  They could be being garnished for the support of another child or the IRS may have a garnishment against their salary. You cannot garnish beyond the maximum percentage so if others are in front of you there may not be enough left for your garnishment. If your ex  is self employed you will not be able to garnish their wages.  All these factors need to be considered before moving forward with a garnishment  You can also garnish bank accounts if the person has not already closed them or drained them in anticipation of a garnishment.          
• NEW CASE LAW: Garnishment of funds in an attorney trust account:  In August of 2011, the Colorado Court of Appeals, In In re the Marriage of Rubio found that if a former spouse hired an attorney and had unearned fees in their trust account with that attorney, that it was possible to garnish those funds as part of a collection action.  So, if the person you are trying to collect from hires an attorney and puts thousands of dollars as a retainer into a trust account with that attorney, you have the right to garnish that trust account if you have a support judgement.  
3. Contempt of Court:  If you have a court order that states that the other party is supposed to be paying child support or maintenance and they are not doing so, they are in contempt of court.  A contempt of court action is quasi criminal in nature and the judge has broad power to enforce the order including putting someone in jail for non payment.  The other party does not have a right to counsel like they would in a criminal proceeding.  Often times the Court will give someone one or more chances before they put them in jail.  This means that you have to go back to court a number of times and incur the attorney fees that this requires.  Also, a defense to contempt of court is that they are unable to pay and still meet their reasonable needs. So you need to consider if this defense will succeed.  The money will still be owed but the court may order much smaller payments.  
4. Motion to Enforce:  This action can be brought but it does not have the semi criminal nature of a motion for contempt.  The court still has the ability to impose sanctions on the party that is not paying.

The Child Support Formula
Here in Colorado, child support is calculated using a formula.  There are exceptions for high income families, but for the most part the formula is utilized.

There can be exceptions and complexities to the formula but, for the purposes of this blog post, I am going to talk about the general information you need to understand how the formula works.

There are three major factors that go into the formula:

1.  Gross Income
Each parent's gross income is placed into the formula.  If you are a salaried employee this is relatively simple.  Bonuses are included and can be averaged over the past few years.  Overtime is not considered gross income.

If a parent owns a business then it is somewhat more difficult to come up with a number for gross income.  Tax records are usually utilized to come up with an average figure for income.  However, depending on how the business is run, there could be arguments on what the gross income really is.  There is some complexity around stock options and income in kind like company cars and frequent flyer miles.

There are issues that pop up around things like disability income and income from personal injury settlements.  If there are issues in your case, please feel free to give us a call to discuss in more depth.

2.  Overnights with the Child or Children
The second number that is placed into the formula is the number of overnights per year that each parent has with the child.  If you are with your child all day but you return them to the other parent at night, you do not get to put that day into the formula.  Only an overnight counts.  The more overnights you have, the less you will pay in child support and vice-versa. 

In some cases, parents will agree at first to a small amount of overnights and then change their mind when the find out that there is such a dramatic effect on the amount of child support they will have to pay.  It is important to be realistic about overnights.  I have seen scenario's where the Dad says he wants 50/50 parenting time, it is agreed to as part of the parenting plan and child support is calculated based on 50/50, only to find that the Dad does not utilize the 50/50 in practice.  He has received the benefit of the 50/50 parenting time in the calculation of child support but is inconsistent in using his right to parenting time.  The Mother ends up with less child support than is needed given that she is really doing the majority of the parenting time.  Now, this can be brought back to Court in a Motion to Modify Child Support and Parenting Time but it is much easier and less expensive to get it right the first time. 

3.  Extraordinary Expenses:
The third basic element to put into the child support formula includes any expenses that the children have on a regular basis that are out of the ordinary.  This could include regular medical expenses or extracurricular activities.  Whoever is paying for medical insurance and/or child care can get credit for doing so in the formula.

Also, if one parent is paying child support already for other children, this will be entered into the formula as well.

Modifying Child Support:
You can go to Court following the initial determination of Child Support to Modify the amount of Child Support if there is more than a 10% difference in the bottom line of the Child Support Calculation due to some sustainable change in circumstances.  For instance, one parent may now make significantly more or less gross income or one parent may be exercising significantly more or less parenting time (overnights) than originally agreed to in the formula. 
This outline provides a very basic understanding of how Child Support is calculated in Colorado.  Each case must be looked at with all the unique circumstances in mind and I would highly advise speaking with a family law attorney to estimate the amount of Child Support that you can expect in your case.

The Child Support Formula
Here in Colorado, child support is calculated using a formula.  There are exceptions for high income families, but for the most part the formula is utilized.

There can be exceptions and complexities to the formula but, for the purposes of this blog post, I am going to talk about the general information you need to understand how the formula works.

There are three major factors that go into the formula:

1.  Gross Income
Each parent's gross income is placed into the formula.  If you are a salaried employee this is relatively simple.  Bonuses are included and can be averaged over the past few years.  Overtime is not considered gross income.

If a parent owns a business then it is somewhat more difficult to come up with a number for gross income.  Tax records are usually utilized to come up with an average figure for income.  However, depending on how the business is run, there could be arguments on what the gross income really is.  There is some complexity around stock options and income in kind like company cars and frequent flyer miles.

There are issues that pop up around things like disability income and income from personal injury settlements.  If there are issues in your case, please feel free to give us a call to discuss in more depth.

2.  Overnights with the Child or Children
The second number that is placed into the formula is the number of overnights per year that each parent has with the child.  If you are with your child all day but you return them to the other parent at night, you do not get to put that day into the formula.  Only an overnight counts.  The more overnights you have, the less you will pay in child support and vice-versa. 

In some cases, parents will agree at first to a small amount of overnights and then change their mind when the find out that there is such a dramatic effect on the amount of child support they will have to pay.  It is important to be realistic about overnights.  I have seen scenario's where the Dad says he wants 50/50 parenting time, it is agreed to as part of the parenting plan and child support is calculated based on 50/50, only to find that the Dad does not utilize the 50/50 in practice.  He has received the benefit of the 50/50 parenting time in the calculation of child support but is inconsistent in using his right to parenting time.  The Mother ends up with less child support than is needed given that she is really doing the majority of the parenting time.  Now, this can be brought back to Court in a Motion to Modify Child Support and Parenting Time but it is much easier and less expensive to get it right the first time. 

3.  Extraordinary Expenses:
The third basic element to put into the child support formula includes any expenses that the children have on a regular basis that are out of the ordinary.  This could include regular medical expenses or extracurricular activities.  Whoever is paying for medical insurance and/or child care can get credit for doing so in the formula.

Also, if one parent is paying child support already for other children, this will be entered into the formula as well.

Modifying Child Support:
You can go to Court following the initial determination of Child Support to Modify the amount of Child Support if there is more than a 10% difference in the bottom line of the Child Support Calculation due to some sustainable change in circumstances.  For instance, one parent may now make significantly more or less gross income or one parent may be exercising significantly more or less parenting time (overnights) than originally agreed to in the formula. 
This outline provides a very basic understanding of how Child Support is calculated in Colorado.  Each case must be looked at with all the unique circumstances in mind and I would highly advise speaking with a family law attorney to estimate the amount of Child Support that you can expect in your case.

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.

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.

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.

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.