SPOUSAL MAINTENANCE IN COLORADO
Divorce brings up a lot of questions, and one of the big ones is: will I get or will I have to pay alimony? In Colorado, we call it spousal maintenance or just maintenance. The answer is: it depends. Colorado courts have broad discretion when awarding maintenance, though they are guided by a number of statutory factors. In this article, we break down the basics of getting or having to pay maintenance when facing a divorce.
What is Spousal Maintenance?
Spousal maintenance is financial support from the higher-earning spouse to the lower-earning spouse after (or during) a divorce to ensure that each have sufficient support for their necessary and reasonable living expenses. The calculation of maintenance takes many factors into consideration, the primary of which being each parties’ income and the duration of the marriage (to determine the duration which maintenance is owed).
The 2013 Reform
In 2013, Colorado revamped its maintenance laws, introducing guidelines for calculating maintenance amounts and durations. These guidelines consider each party’s income and the length of the marriage, but still allow judges with broad discretion to consider a totality of the relevant circumstances.
CALCULATING SPOUSAL Maintenance
The “guideline” amount of maintenance owed from one spouse to another is dependent upon each spouse’s income, any possible credits (such as support paid to another family), and whether maintenance is tax-deductible for the payor or taxable against the payee. The duration for which this monthly amount is owed is determined by the duration of marriage - longer marriages result in a greater number of years that maintenance may be paid. Now, without anything else to consider, the Court typically defaults to this simple calculation. However, many factors can be used to argue why the Court should deviate from this guideline amount; this is one way that maintenance differs from child support as the guideline calculation for child support is typically steadfast.
Per C.R.S. 14-10-114, the Court may consider the following additional factors in determining a fair and equitable maintenance award:
Each party’s gross income
The marital property allocated to each party
The financial resources of each party, including any actual or potential income from separate or marital property
The reasonable financial need as established during the marriage
Whether maintenance would be tax deductible by the payor or taxable to the recipient
In any proceeding in which a party is seeking maintenance and prior to considering the above factors so to determine an amount and duration of maintenance that is fair and equitable, the Court must first find that the party seeking maintenance “lacks sufficient property, including marital property apportioned to them, to provide for their reasonable needs and is unable to support themself through appropriate employment…”. C.R.S.14-10-114(3)(d). Basically, this means that the party seeking maintenance has the burden of proving to the Court that they cannot meet their reasonable and necessary living expenses AND is appropriately employed (an exception to this employment prong is when a party can show that they are the custodian of a child whose condition or other circumstances make it inappropriate for the party to be required to seek employment outside the home).
Did you know that the issue of maintenance can be a crucial tool in negotiating settlement?
Unlike child support, maintenance can be a leveraging mechanism during settlement talks - the amount thereof, duration of payment, lump sum, or more assets in lieu thereof, etc.
How can an attorney help me with the issue of maintenance?
As described above, the Court considers many factors when determining maintenance. This issue can be part of negotiations and be used to leverage innovative and positive outcomes for parties. However, establishing one party’s need for maintenance or proving the other party’s ability to pay are key steps to deciding this issue and require relevant financial disclosures. HB Law attorneys will ensure that proper discovery is completed so to build our client’s argument either to receive a fair and equitable amount of maintenance or to protect our clients from overpaying in maintenance. Maintenance tends to be a major pain point in many divorces and an area where we see individuals getting taken advantage of - we can protect you and ensure your solid, financial footing to move beyond divorce. We can also aid the structuring of settlements so to protect your assets and future. Did you know that maintenance can be shown as income when purchasing a new home after divorce? We take these forward-looking approaches to help our clients, not only in their divorce, but to step away from a divorce prepared to move on toward a bright and better future.
Can I modify maintenance?
Did you know that maintenance is modifiable? That is, unless you waive it or make it contractually nonmodifiable (see below). When a Court enters an order awarding maintenance to one party, either party can move to modify that maintenance award with the showing of a change in circumstance - the change must be so significant and continuing so to render the current maintenance award unfair. C.R.S. 14-10-122(1)(a). Maintenance can even be terminated when appropriate using this same standard.
Types of Spousal Maintenance
Temporary Maintenance: The Court can award temporary maintenance so that parties receive sufficient support during the divorce process. This can be an award of maintenance as determined by the Court via a hearing, or it can be an amount agreed upon by the parties then made an order of the Court. Temporary maintenance received prior to final orders can be considered by the Court in determining a final maintenance order.
Permanent/Statutory Maintenance: This refers to the maintenance award ordered by the Court at permanent orders/final orders hearing, upon consideration of testimony and evidence that speaks to the factors mentioned above.
Contractual and Non-Modifiable Maintenance: Parties can agree upon a maintenance provision including amount and duration of time. When agreed upon between the parties, maintenance is still modifiable pursuant to statute unless the parties explicitly agree to make maintenance non-modifiable. It’s crucial to consult a family law attorney before agreeing to non-modifiable terms.