Child Support Upward Deviations
Child support is an important area of divorce and family law and is governed by statutory guidelines. Child support is determined based on an income shares approach and the calculations are considered to be presumptively appropriate. An income shares approach means that the Court will look at each parties income, and determine a base child support amount to which the child is entitled based on the income of his or her parents. However, courts may deviate upward in the best interests of the child if the child’s needs are higher than the guidelines provide for and the parents can reasonably afford the upward deviation.
Either parent may ask the court to make an award that differs from the guidelines, however that parent has the burden of establishing that the deviation is in the best interests of the child and that the paying party can reasonably afford the additional expense. Parties are also free to agree between themselves to upward deviations. If a Judge deviates, he or she must explain in the order the basis for the deviation. Because the guidelines are presumptively appropriate, a party requesting a deviation should be prepared to explain in detail and present quantitative evidence as to why a deviation is necessary.Costs
The Colorado courts website provides a free child support calculator. It is helpful to calculate the presumptive award and then chart the children’s expenses to see if their needs can be met within the presumptive award amount. If not, then you may wish the request a deviation. The basic child support amount from the guidelines is intended to cover food, clothing and shelter. There are also mandatory add-ons for unreimbursed medical expenses and work or education-related childcare. Expenses may be added on for educational purposes. Think about the amount of money that the children require to maintain their lifestyle after divorce or separation, and whether the parties can maintain that standard after the financial impact of separating households. After all, the children should not suffer financially because of a divorce or separation. If you don’t ask for a deviation or agree to one, a court will not award one.When a Deviation is Requested
A court will:
- Calculate the presumptive amount
- Review and evaluate evidence supporting a deviation
- Make findings of fact regarding a deviation
- Make a finding that the presumptive award is unjust, inappropriate, excessive or inadequate, if applicable
- Prepare a written explanation of the reasons for the deviation
- Determine whether the deviation is in the child’s interests
To help the Court understand the deviation rationale, chart the children’s expenses and show the impact if the expenses are not fully funded. In court the chart will have to be supported with the financial documentation underlying the expenses. You want to show how the presumptive award is unjust or inappropriate. You can also emphasize the other parent’s ability to pay. This will help the Court when drafting a rationale for a deviation.
Are you looking for a Family Law Attorney who understands the importance of constructive problem solving and providing financial support to children? At Janko Family Law, we understand how to assist families in family law matters. Give us a call for a complimentary case assessment.