Under Colorado law, child support may be modified where the parties mutually agree to change custody of their minor child/children. Yet, the law becomes hazy when determining the impact this mutual agreement may have on the modification of child support. Questions arise: Is child support modified at the time the custody actually changed or at the time a party files his or her motion? May the support obligation be modified for the obligor/payer, the Obligee/receiver, or both? Does the court retroactively apply the modification? What happens to any child support debt or arrearages existing prior to the modification in the event the change in child support is applied retroactively? Will the child support enforcement units of each state recognize the modification?
Colorado Revised Statute 14-10-122(5) specifically states “the provisions for child support for the obligor (payer) under the existing child support order, if modified pursuant to this section, will be modified as of the date when the physical care was changed.” Though this language appears simple enough, the divisions of the Colorado Court of Appeals have uncovered a complexity in the language. One division of the Court of Appeals determined this language allowed for modification of child support from the date the custody changed. See In re the Marriage of Emerson, 77 P.3d 923 (Colo. App. 2003) Whereas another division found the exact same language allowed only for modification from the date the motion was filed. See In re the Marriage of White, 240 P.3d 534 (Colo. App. 2010). Further, neither division could agree if the modification was only applicable to the original obligor or if the modification may be applied to the obligee. You may asking yourself, “what does this matter anyway as long as the child support payment changes?” These are good questions and the answers are even trickier!