Should Retirement Benefits or Financial Losses be Included When Calculating Child Support?

Dear Esq.,

I have a full-time job and an Air Force retirement. My ex-wife was not married to me during any of my Air Force time. I also own, but have first mortgages on, some rental properties. Over the past 3 years, the real estate market has been very difficult and I’ve suffered negative income on the properties from vacancies and repairs.

 

Should the Air Force retirement and the negative income be factored into my income for child support purposes?

Curious in Colorado

Dear Curious,

You raise some really good questions which, unfortunately, only an attorney in your state and with a certain amount of expertise can really answer fully.

There are a few reasons for this:

First, your Air Force retirement, being a Federal benefit, is almost certainly covered by the Federal ERISA (Employee Retirement Income Security Act). This complicates things no end, because now you are not only dealing with your state child support law, but also Federal law which can, and often does, prempt the state law.

Were Colorado one of the community property states, it would be easier to give you some general overview of how these things typically play out, as the community property system varies little from state to state. However, Colorado is what is known as an “equitable distribution” state, rather than community property, and so all bets are off. Again, this is why you need to speak with a specialist in your state.

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I can tell you that were Colorado a community property state, and if the effort to include your retirement in the support calculations cleared the ERISA hurdle, then the Court would look at things such as whether the retirement is intended as a reward for the work you did back prior to your marriage, or is it intended as a contemporary income replacement? If the former, the Court might not include the retirement monies in any present support calculation (as you were not married when you performed the work for which you are being rewarded), while it would be more inclined to include it if the latter is the case.

With respect to your losses on your rental properties, child support is calculated based on pre-tax income, either pre- or post-adjustment (depending upon the adjustments, and the state in which you reside). Whether you can deduct the rental income losses prior to the application of the support calculation may depend on a number of things, including whether managing the rental properties is your full time job or just something you do on the side, what efforts you made to ameliorate the losses, and even when you purchased the property (during the marriage or outside of the marriage). Or you may be completely precluded from deducting the losses at all.

Again, this all points to your needing to consult with an attorney in your state who is familiar with all of these issues, including ERISA.

DEsq

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