Legislative topics and appellate cases are reshaping a few areas of family law. A state adjustment to a federal tax law will take shape this year, and upcoming court opinions are likely to bring changes down the line.
For the Colorado Bar Association’s family law section, the changes have required quick action in order to keep the system from backfiring against some of its most vulnerable participants — children stuck in the middle of family law disputes.
Tax Cuts and Jobs Act
Congress’ massive 2017 tax code overhaul, the Tax Cuts and Jobs Act, included provisions for couples that get divorced in 2019 and later.
Alimony, or maintenance in Colorado, used to be tax deductible to the payer and taxable income for the recipient, but the act made it so that was no longer the case for either spouse. For instance, under the changes that came with the Tax Cuts and Jobs Act, payers would no longer be able to take the maintenance off the top of their income, which could bump them into a lower tax bracket and diminish payments. Recipients are no longer required to pay taxes on those payments.
“There is less money to go around for every divorcing family,” said Robin Lutz Beattie, chair of the CBA’s family law section and partner at Polidori Franklin Monahan & Beattie.
In order to avoid negative effects that would go with that, she said the CBA members lobbied Colorado’s legislature in 2018 to make adjustments to maintenance in the state. The legislature last year passed House Bill 18-1385, which now includes a determination of maintenance to allocate the tax burden equitably between the parties.
“Colorado’s state maintenance calculation was premised on the idea that maintenance was tax deductible,” Beattie said. “If they no longer would have had the tax deduction but also had to have this formula, that would have been horrible for citizens.”
She said the changes made by the legislature weren’t without criticism, but if the legislature had done nothing, citizens of Colorado would have likely suffered.
Child Support Statute
One key bill in the 2019 legislature will have some effects on parties paying child support, though it might not have much of an impact on attorneys.
House Bill 1215 lowered child support guidelines for low-income earners. According to Beattie, the logic of the bill was to make it so men who failed to pay child support wouldn’t face jail as a consequence. She said it doesn’t help child recipients of those payments, though.
And although the CBA family law section opposed the bill, she said it passed against their wishes.
“I don’t think it will look different for high earners, but it’s very different for low earners,” Beattie said. “It’s unfortunate that it will be lowered at all.”
Changes to Come
In addition to legislative changes to Colorado family law, some cases before state appellate courts have implications for attorneys as well.
The CBA family law section filed an amicus brief in a case that questions whether a trial court should be able to make decisions to modify parenting time while a case is pending on appeal.
The CBA argued the trial court should retain jurisdiction to make decisions on those issues while a case is pending. An appeal can take over a year, Beattie said, which is a long time for a family situation to continue. “It’s about kids,” she said. “If parenting time needs to be changed, we believe the [litigants] should have somewhere to turn to where they can have an effective and swift response. … When you’re dealing with kid issues, you don’t have precious time.” And when a family is willing to appeal a decision, that signals they are a high-conflict family, she said. Other issues are still developing or could possibly change once the legislature or a court revisits them.
Common law marriage is one section of Colorado law that could see an overhaul. The Court of Appeals ruled in In the Marriage of Hogsett in December, finding that the test for common law marriage applies to same sex couples, as well. That case might be teed up for state Supreme Court review.
The issue of common law marriage might as it applies to all couples might be addressed in the legislature.
Beattie said common law marriage is frequently misunderstood to mean that a couple that cohabitates for a certain amount of time is common law married.
“That’s not actually true,” she said. “And you won’t get the right answer unless you ask a family law attorney.”
She said that misunderstanding means the argument opposed to common law marriage often involves stating that a person should know whether they’re married. She said she is concerned the topic will make its way to the legislature soon, with some lawmakers already questioning whether to keep common law marriage as an institution in Colorado. She said the timing of the question is unfortunate, since the Hogsett ruling only recently gave common law marriage rights to same-sex couples, and the case might still go to the Supreme Court for review.
— Tony Flesor, [email protected]