Retroactive Child Support: Conflicting Decisions and Practical Advice
| Publication year | 2012 |
| Pages | 91 |
| Citation | Vol. 41 No. 8 Pg. 91 |
2012, August, Pg. 91. Retroactive Child Support: Conflicting Decisions and Practical Advice
August 2012
Vol. 41, No. 8 [Page91]
Family Law
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles focus on practice tips and discussions of current issues within the realm of family law.
Coordinating Editors
Patricia A. Cooper, Denver, of the Law Office of Stephen J. Harhai-(303) 329-8300, tcooper@harhai.com; Meredith Patrick Cord, Colorado Springs, of Johnson and Cord, PC-(719) 471-4034, mpc@johnsoncord.com
About the Authors
Laura E. Shapiro is the owner of the Law Office of Laura E. Shapiro, P.C., and has specialized in family law since 1987-(303) 695-0200, laura@lshapirolaw.com. James M. Cordes is an associate attorney at of the Law Office of Laura E. Shapiro, P.C., and practices family law-(303) 695-0200, james@lshapirolaw.com.
This article provides an overview of the law regarding child support retroactivity when there has been a voluntary change in physical care, unsettled case law in the area, and insight into approaching retroactivity in these types of cases.
CRS § 14-10-122(1)(a) provides that: "[T]he provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification." However, the statute provides one exception to the rule that retroactive modification is limited to the date a motion to modify is filed:
When a mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified as of the date when physical care was changed.(fn1)
Recent Colorado Court of Appeals cases regarding the retroactive modification of child support after an agreed-upon change of physical care are conflicting and ripe for review by the Colorado Supreme Court. Until the Supreme Court decides the issue or the statute is further clarified or amended by the General Assembly, district courts might resolve the issue in a conflicting manner.
Overview of Retroactivity
Generally, child support is modifiable from the date a motion to modify is filed.(fn2) In 1991, the General Assembly crafted an exception to the general rule prohibiting retroactive modification in CRS § 14-10-122. The 1991 version of CRS § 14-10-122(5) read:
When a voluntary change of physical custody occurs, the provisions for support, if modified pursuant to this section, will be modified as of the date when physical custody was changed.(fn3)
In 1992, the General Assembly added CRS § 14-10-122(1)(d):
If . . . child support is modified pursuant to this section, the modification should be effective as of the date of the filing of the motion, unless the court finds that it would cause undue hardship or substantial injustice. In no instance shall the order be retroactively modified prior to the date of filing.(fn4)
In In re the Marriage of Pickering, the court of appeals determined that § 14-10-122(1)(d) and (a), which provided that child support can be modified only as to installments accruing subsequent to the filing of the motion for modification, directly conflicted with section (5).(fn5) The Pickering court determined that subsections (1)(d) and (1)(a)...
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