Modifying Parenting Time & Alimony
Finalizing your divorce can be a relief. After all, you’re now free to start your new life. However, circumstances can change as both of you move on. Your incomes could change. One or both of you might remarry or move away. When change arises, modifying parenting time and alimony could become necessary.
Bottom Line:
Colorado law acknowledges that divorce decrees may require adjustments over time. An experienced attorney is essential for post-divorce modifications due to the complexity and intricacies involved in the process.
In this Article:
What is a Modification After Divorce?
Simply put, a modification is a change to the divorce ruling.
Some orders are more difficult to change than others. Modifying custody and alimony is possible. The request to modify, though, comes with a burden of proof. You must justify to the court why it should change the previous arrangement.
When to File for a Modification
A request for modifying custody and/or spousal maintenance can be filed when circumstances have changed substantially, such as:
Inability to co-parent and make joint decisions related to the child’s well-being
A parent’s use and/or abuse of substances that pose a threat to the child’s safety
The financially dependent spouse becomes self-supporting and no longer needs maintenance
The spouse paying maintenance retires and experiences a substantial income reduction
It is important to be precise when filing requests for modification. Incorrect applications will be denied by the court. This means they will not be considered.
Also, be aware the court has an inclination to deny any modification request that does not have strong supporting evidence.
Five Common Modification Requests
Modification of Maintenance
In Colorado, alimony is called spousal maintenance. However, they are one and the same. Alimony does not include child support payments.
Most maintenance payments are designed to be temporary while the receiving spouse looks for a job or receives occupational training.
There are situations where maintenance will continue longer or possibly indefinitely. For example, when the divorced spouses are older or one has significant health issues preventing them from working.
How Maintenance is Awarded in Colorado
In the state of Colorado, a family law judge determines whether maintenance is appropriate. If it is awarded, the judge decides how much and for how long. However, there are statutory guidelines the court may consider.
Amount of Alimony
In Colorado, spousal maintenance used to be calculated by taking 40% of the divorcing couple’s total monthly adjusted gross income (AGI), then subtracting the lower earner’s AGI. Divorces finalized before January 1, 2019 still follow this method.
The current guideline still starts with this calculation but adjusts the final amount based on the monthly incomes of both spouses.
If both spouses’ combined AGI is less than $10,000 per month, the monthly amount is reduced by 20 percent.
If both spouses’ combined AGI is more than $10,000 per month, the monthly payment is reduced by 25 percent.
For example:
Rick and Cherie finalized their divorce in early 2022 after five years of marriage. Rick’s monthly adjusted gross income is $2,200. Cherie earns $6,000 per month.
$2,200 + $5,000 = $7,200.
$7,200 x .40 = $2,880. This is the base amount of maintenance Cherie will pay to Rick, the lower earner. However, as their total combined AGI ($7,200) is less than $10,000, the base amount is reduced by 20 percent.
$2,880 x .20 = $576. $2,880 minus $576 = $2,304.
Cherie will owe Rick $2,304 per month in spousal maintenance for 21 months, according to the chart provided in Colo. Rev. Stat. 14-10-114 (3)(b)(I)(B)-(C).
Length of Alimony
How long someone pays/receives alimony depends on the length of the marriage. In most cases, you must be married for a minimum of three years to receive alimony. Marriages that lasted three years can be eligible for 11 months of alimony. The longer a couple is married, the longer the maintenance can last. For instance, someone married 20 years can receive 10 years of maintenance payments. see chart in C.R.S. 14-10-114 (3)(b)(I)(B)-(C).
The court has discretion on how much and for how long maintenance will be awarded for marriages lasting longer than 20 years. In some cases, alimony can be granted for life, only to be rescinded upon death or remarriage.
Requesting Alimony Modification
Either spouse may apply for maintenance modification. You may request to prolong or shorten the duration or increase or decrease the payment amount.
As previously mentioned, the petitioner needs ample evidence for the request based on financial circumstances.
Here are some examples of evidence you would need for a modification:
a verified significant decrease in the recipient’s income or earning ability (Hyperlink 6)
a justified increase in their financial obligations and responsibilities
a delay in the improvement of the recipient’s economic condition or employment prospects
unavoidable loss of financial assets from fire, flood, or fraud
You will need extensive documentation. So make sure to begin tracking the situation as early as possible. Gather copies of:
income statements,
bank statements,
tax documents, and
other paperwork …
… to provide background and support for your request to modify.
Modification of Child Support
Child support payments are more flexible than other modification requests.
Colorado Revised Statute §14-10-122 sets the standard for modification of child support. It states that the change must be substantial and continuing.
The law also allows for the amount of the child support order to increase or decrease by as little as 10 percent, but it must be at least a 10 percent change.
Reasons to modify existing child support may include:
an adjustment in the cost of raising a child, such as daycare charges and healthcare costs
an income fluctuation with either parent
one of the children has emancipated or turned 19 years old
medical and/or dental support was not included in the original order
there has been a change in the number of overnight visits the children have with one of the parents
Note: A change in the custodial parent’s expenses does not set the stage for a child support modification. For example, purchasing a new car or house generally would not change the current child support assessment.
Modification of Parenting Time
Widely known as custody or visitation, parenting time is the name given to these in Colorado. A separated couple decides on a parenting time arrangement and submits it to the court for approval.
Colorado child custody matters always begin with the presumption that parents should share legal custody of their child(ren). Courts hope to preserve that equality, however, logistics or other concerns may necessitate other arrangements. Allocation of parental responsibilities (APR) lays out:
who the child or children will primarily live with,
who makes major decisions, such as those relating to health, religion or education, and
what “parenting time” or visitation will be for the non-custodial parent.
In all cases, even in modification matters, the deciding factor for the court is whatever is in the best interests of the child. — C.R.S. 14-10-124 (1.5) (b)
When Can Parenting Time Be Modified?
If situations change, the parenting plan can be modified to fit the child’s best interests. Modification could mean allowing the non-custodial parent to have less or more parenting time with the child(ren).
Parenting time can be difficult to sort out when one parent must move further away. A modification would be appropriate if a parent is relocating for a job, a new relationship, or to be closer to family.
In these situations, custody can be modified to have the child live with one parent most of the time. The other parent then agrees to a schedule allowing the child to visit during school breaks. Other situations that may lead to the modification of parenting time:
abusive behavior from one parent toward the child
a situation that puts the child in danger, physically or emotionally
parental alienation Modifications based on these situations must be approved by the court. There is no legal standing for “handshake” agreements reached only between the parents.
Modification of Decision-Making Authority
Old labels like “alimony” and “visitation” are out of fashion in Colorado domestic law. The same goes for the term “joint custody,” which has been replaced by parental responsibility.
A subset of parental responsibility is decision-making authority. Will major decisions be made together or by one parent?
Major decisions include:
where the child goes to school
what religious institutions they attend
medical needs
activities such as sports, clubs, or work
Most day-to-day decisions are made by the parent the child is staying or living with at the time. These minor decisions include:
what and when the child eats,
when the child sleeps,
where the child goes while in the parent’s care, and
any disciplinary measures or actions if the child misbehaves.
Decision-Making Authority is Tough to Modify
In Colorado, parental responsibility is frequently awarded jointly. The courts prefer that both parents remain active and involved in their children’s lives. However, once the court has given one parent sole decision-making authority, it takes a lot to change it.
If a parent wants to change decision-making authority, they must prove a higher standard. This goes beyond showing it’s in the child’s best interests, such as proving any of the following:
the child has been integrated into the non-decision-making parent’s family with the other parent’s consent.
the primary or decision-making parent plans to move away with the child.
the child’s current environment harms their physical or emotional health.
Without strong evidence of any of these points, the existing parenting plan and orders will stay in place. — C.R.S. 14-10-129 (2)
Moving Out of State with a Child
Colorado courts do not have the authority to restrict a parent’s freedom to move to a new area. They can, however, weigh in on whether one parent can change their child’s geographic ties to the other parent.
This means you cannot move your child away from the other parent without getting the parent’s written consent. This assumes the other parent shares rights to parenting time and decision-making authority.
Colorado law requires that the party wishing to move give the other parent written notice as soon as practicable. The statement must include:
the intent to move,
details about the proposed new home location,
an explanation for the request to move the child, and
a detailed proposal for a new, modified parenting plan.
— C.R.S. 14-10-129 (1) (a) (II)
What if the Other Parent Won’t Consent?
This is when the court steps in. If you and your ex cannot agree on a new parenting plan, you must file a motion for relocation. The motion should give reasons why the move would benefit the child. For example, the new location might offer better schools or stronger family support.
You must also propose a new parenting plan and attach a proposed court order. If the move will affect child support, that can be addressed and resolved in the same court proceeding.
The court has final say in whether one parent may relocate with the child or children. In accordance with C.R.S. 14-10-129 (2) (c), the court considers nine factors in its decision:
why the party wishes to relocate with the child
why the opposing party objects to the proposed relocation
history and quality of each party’s relationship with the child since any previous parenting time order
educational opportunities for the child at the existing location and at the proposed new location
presence or absence of extended family at the existing location and at the proposed new location
advantages of the child remaining with the primary caregiver
the anticipated impact of the move on the child
whether the court can fashion a reasonable parenting time schedule if the change requested is permitted
considerations of conditions where the mental or physical well-being of the child is in danger
Consult an Experienced Modification Attorney
If you are thinking about making some changes to your custody or spousal support arrangements, consult with a knowledgeable family law attorney. A a skilled lawyer is essential to help prepare a persuasive argument and maximize your chances of a successful outcome.
Call us at (720) 895-9834 for your initial case assessment.
