Under Colorado law, a trial court can impute a parent income if it determines that the parent is shirking their child support obligation and voluntarily unemployed or underemployed. However, the trial court cannot impute child care expenses on a child support worksheet even if they imputed income to a parent. A trial court may only consider child care expenses that are actually incurred.
In practice, this situation ends up disadvantaging the stay-at-home parent who has been out of the workforce raising children. That parent will probably, at some point, be expected to get a job and begin working full time. Depending on the judicial officer and the case, it is possible that the parent is immediately imputed a full-time salary. Hopefully, that parent is afforded some time to rehabilitate their career. Regardless, that parent cannot be imputed child care costs on a child support worksheet. Especially with the cost of child care in Colorado, how is this parent supposed to actually get a job? Their imputed wage is a legal fiction not grounded in reality. But this legal fiction results in reduced amount of child support owed. The financially disadvantaged parent can get stuck in an endless battle. The parent is receiving less support because he or she is imputed full-time wage, the parent cannot afford child care because he or she is receiving less child support, and the parent cannot go out and get a job at the imputed wage if he or she cannot afford child care.
What is a financial disadvantaged spouse supposed to do if they need child care to work full-time but do not yet incur child care costs? First, the spouse should consider, before any Court orders are issued, negotiating with the other spouse concerning how to pay for child care costs. If child care is required so that the stay-at-home parent can begin looking for work, the parties should negotiate how to pay for child care in any temporary orders negotiations. Second, the spouse should consider asking the Court to deviate from statute and order that child care costs be paid off-worksheet in proportion to the parties’ incomes. An order for child care costs to be paid off-worksheet does not perfectly protect the financially disadvantaged spouse, but it does help alleviate some of the child care burden by requiring the financially advantaged spouse to contribute to child care costs as soon as they are incurred (instead of upon a Court Order). Third, a financially disadvantaged spouse should discuss, with their attorney, actually incurring child care costs prior to any child support hearing so that the Court has the authority under case law to include those costs on a child support worksheet.
Heather Strack’s practice focuses on high-conflict cases, jurisdiction issues, and cases that involve dealing with family-owned or closely-held businesses. Many of Heather’s cases involve domestic violence, child abuse, drug abuse (including marijuana), or alcohol abuse. Heather was honored as a Colorado Super Lawyer® “Rising Star” in both 2017 and 2018.