Colorado has a legal name of “Maintenance” for what most people call Alimony. Maintenance is often one of the most disputed issues in a divorce case. Colorado has two different versions of maintenance, temporary maintenance and permanent maintenance. How the Courts are to consider awarding either form of maintenance is governed by Colorado Revised Statutes 14-10-114. This statute was substantially changed as January 1, 2014 and will be slightly changed again effective January 1, 2017. The 2014 change resulted from the Legislature’s desire to create a framework for the determination of maintenance awards to attempt to assist the court to make such maintenance (alimony) awards more consistent across each judicial district and county in Colorado. The Legislature created a guideline that provides for the duration maintenance (alimony) should be paid based upon the number of months the parties have been married and a mathematical formula for determining what is the recommended amount of maintenance (alimony) to be paid each month. It is our firm’s experience that even with such framework of guidelines, Judges still widely vary on whether they will award maintenance at all and if so if they will follow the guidelines provided by the Legislature. It is important for a party to consider who their Judge will be for trial and what is that Judge’s typical attitude towards the guidelines.It is important for a party to know what the guideline compute for their situation to have an understanding of what could happen if their divorce goes to trial and a Judge follows the guidelines without any consideration of mitigating factors.Maintenance is one area of divorce law where having a competent attorney is important. Typically, maintenance whether it be temporary or permanent is taxable to the person receiving the money. The tax consequences of any type of maintenance needs to be considered in determining what is a reasonable amount of maintenance. Another significant consideration is for the person paying the maintenance to be able to legally declare as nontaxable to themselves that portion of their income paid as maintenance to the other party. For persons receiving lump sums in a divorce it is important to consider whether such sum of money will be considered maintenance and therefore taxable to the person receiving the money or the sum of money is to be considered part of the property settlement and then typically not taxable to the person receiving the money. It is important to discuss the tax consequences of a divorce with a competent attorney.
Regardless of the guideline and the recommended amounts from the Legislature, first the Court has to determine a preliminary assessment of (1) does a spouse need support and (2) does the other spouse have the ability to pay support. Many factors go into this analysis by the court. This evaluation of all the relevant factors by the court is where a party’s lawyer can make a significant difference to what amount, if any, is paid as maintenance (alimony). The choice of lawyer can impact both the amount of temporary maintenance to be paid while the divorce is ongoing and the amount of permanent maintenance, if any to be paid after the divorce is final.
Temporary maintenance can be awarded while the divorce case is pending in the court before the court issues a decree of dissolution of marriage. Such award can only exist as long as the divorce is not final. Once the court issues a decree of dissolution of marriage the temporary maintenance award terminates. When Temporary Maintenance (Alimony) is ordered, the court will set a specific amount and specific start date. Temporary maintenance can be retroactive going back to the latest date of three events, the physical separation of the parties, the filing of the divorce petition with the court or the date of service of process on the respondent party.The State of Colorado has a stated philosophy that temporary maintenance is often necessary while the court is hearing the divorce case to put into effect a blending of the parties’ incomes until the court can issue permanent orders to finalize the divorce.
Pursuant to the statute CRS 14-10-114(4)(a) the Court may award temporary maintenance (alimony) if it finds a set of factors are met and then consults the guidelines for guidance on the amount of such temporary monthly payment. Again, the court can choose to not follow the guideline amount of recommended maintenance. The court also is to consider the payment of family expenses and debts while the divorce case is ongoing. A temporary maintenance (alimony) award can be changed higher or lower or be terminated at the permanent orders hearing.
Permanent maintenance can be awarded after the divorce is final and can last for a definite set of time in months or years or be indefinite and last a lifetime. When ordered, the court will set a specific amount and specific start date. For permanent maintenance the court will also set a termination date and/or list events that if they take place will terminate the maintenance obligation.For marriages over 20 years long there are special considerations. For persons married 20 years or longer, they should speak with a competent lawyer to determine what special considerations will impact their divorce.
For the analysis to determine both Temporary and Permanent Maintenance, initially the court is to consider the following groups of factors:
After considering the four factors above, then the court looks at the Legislature’s guideline recommended amount and recommended term. The term does not apply for a Temporary Maintenance award, just the recommended amount.
After the initial consideration of the above 4 factors, the court then looks at the next 12 factors of:
After the consideration of the 4 initial factors, and the 12 additional factors, the court then looks at the ultimate test to see if it can award maintenance ( alimony ). The test is the court can award maintenance only if it determines that (1) the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs and (2) is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home.
The Legislature’s maintenance guidelines do not control what the court does for the amount or term of maintenance. The court has discretion to determine the award of maintenance that is fair and equitable to both parties based upon the totality of the circumstances. The court is required to make specific statements in its order that support of the amount and term of maintenance awarded or an order denying a request for maintenance by one spouse.
The court can decide to award more marital property to the recipient spouse or otherwise adjust the distribution of marital property or debt between the parties to alleviate the need for maintenance or to reduce the amount or term of maintenance awarded.
The Legislature has created guidelines for recommended maintenance monthly amounts and for the term of months such amounts are to be paid. The guidelines are provided for marriages of three years or longer and where the annual adjusted gross income of the parties does not exceed the greater of two hundred forty thousand dollars or the uppermost limits of the schedule of basic child support obligations set forth in section CRS 14-10-115. To determine what the guidelines indicate for a specific couples’ situation can be somewhat confusing. However, the guidelines’ general rule of thumb is the monthly amount of maintenance (alimony) to be paid is equal to 40% of the higher income party’s monthly adjusted gross income less fifty percent of the lower income party's monthly adjusted gross income. However, such amount when added to the gross income of the recipient, cannot result in the recipient receiving in excess of forty percent of the parties' combined monthly adjusted gross income. The time period for maintenance to be paid by the guidelines is calculated based upon whole months, for marriages of at least three years, (36 months) but not more than twenty years (240 months). The Legislature has created a table of a resulting term to pay alimony for all these months between 36 and 240. When the duration of the parties' marriage exceeds twenty years, the court may award maintenance for a specified term of years or for an indefinite term, but the court is not to specify a maintenance term that is less than the maintenance term under the guidelines for a twenty-year marriage without making specific findings that support a reduced term of maintenance. To address these potential “specific findings”, a party to a divorce should engage a competent lawyer so they can strive for their best possible outcome regarding the amount of and term for permanent maintenance.
Once the Court awards maintenance to one spouse, the specific amount of monthly maintenance and/or the term of months such alimony is to be paid can only be changed by a future court order. It can be difficult to make changes to a permanent order for maintenance. It is important to make your best case during the initial determination of the issue by the court.
If a payer spouse wishes to modify maintenance in the future, to lower the amount being paid or to end it early, a motion needs to be filed pursuant to CRS 14-10-122. To have a valid basis for the court to modify maintenance, a payer spouse must demonstrate changed circumstances so substantial and continuing as to make the terms of the order for maintenance grossly unfair. Any change can only be effective as of the date of filing such motion to modify and will not apply to already past due or made payments prior to the date of filing this motion with the court. It is wise to have a competent lawyer involved in any attempt to modify or terminate maintenance as it can be a complex issue.
However, unless otherwise agreed in writing by the parties or expressly provided in the decree by the court, the obligation to pay future maintenance is terminated upon the earlier of:
It is notable that under Colorado Law a payor spouse whose income is reduced or terminated due to his or her retirement after reaching full retirement age is entitled to a rebuttable presumption that the retirement is in good faith. "Full retirement age" is defined as the payor's usual or ordinary retirement age when he or she would be eligible for full United States social security benefits, regardless of whether he or she is ineligible for social security benefits for some reason other than attaining full retirement age. Typically at this tiem such age is 66 years old. "Full retirement age" does not mean "early retirement age" if early retirement is available to the payor spouse. Further it does not mean "maximum benefit retirement age" if additional benefits are available as a result of delayed retirement. One does not have to wait to retire just because one could gain additional benefits by waiting, if one is already at the "Full retirement age". Retirement is typically a well-received reason by the court to end maintenance early or to at least reduce the monthly amount to be paid.