FREQUENTLY ASKED QUESTIONS ABOUT MAINTENANCE/ALIMONY IN COLORADO DIVORCE
What is the criteria to receive alimony/maintenance in Colorado?
In a Colorado divorce case, the judge must find that an individual 1) lacks sufficient property including marital property apportioned to him or her to provide for his or her reasonable needs and 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. (Section 14-10-114(d), C.RS).
What Factors Affect the Amount and Term of Maintenance?
Pursuant to Section 14-10-114(C)(4), C.R.S. The court shall consider all relevant factors including but not limited to the following: financial resources of both the payor and the recipient spouse, lifestyle during the marriage, distribution of marital property, both parties’ income, employment, and employability, earnings’ history of the spouses; duration of the marriage, the amount of temporary maintenance, the age and health of the parties, significant economic or noneconomic contribution to the marriage.
What Is the Colorado Advisory Maintenance Guideline?
Colorado has an advisory maintenance guideline to provide some predictability and consistency in maintenance awards. The court has no obligation to utilize the guideline either as to amount or duration.
Why Does Colorado Have a Maintenance Guideline if They Are Not Going to Use It?
Most judges use it as a starting point, or make a finding as to why it is not appropriate.
Can Maintenance or Alimony Be Changed?
If the court issues the order, then the maintenance is referred to as statutory maintenance and it is modifiable (can be changed). If the parties reach an agreement and specifically agree that the maintenance is pursuant to a contractual agreement, then it is referred to as contractual maintenance and it can’t be changed.
What Is the Standard for A Judge to Order a Change to A Maintenance Award?
In order for a court to issue an order changing an order for maintenance/alimony, the judge needs to make a finding that there has been a substantial and continuing change so significant that the original order is now unfair. (See Section 14-10-122, C.R.S). This is a high burden.
Is the Standard to Change Maintenance the Same as To Change Child Support?
No. Although the definition of income for purposes of calculating maintenance is the same as the definition of income for purposes of calculating child support, the standard to change or modify maintenance is not.
The standard to modify child support is that there has been a substantial and continuing change resulting in a 10% or more change to the child support obligation. While there is a maintenance worksheet, that is merely a guideline. It does not create a presumption; while the child support worksheets create a presumptive amount of child support which should be paid. The parties can agree to deviate from the child support worksheet, but a court needs to make findings as to why the deviation is appropriate and does not operate to deprive the child of support.
Why Can’t Contractual Maintenance Be Changed?
Contractual maintenance can’t be changed because the court’s jurisdiction ends at the conclusion of the time period to pay. The court has jurisdiction to enforce the order, but can’t change the time or duration.
What’s the Benefit of Contractual Maintenance?
Contractual maintenance gives the payor the benefit of knowing that on a date certain, his obligation will be completed. It doesn’t matter how much money he/she is making or has received via inheritance, or otherwise, or how little his or her ex spouse is earning. It gives the payor a date certain that can be circled on the calendar as a non-changeable end date.
What Are the Downsides of Contractual Maintenance?
The downsides to contractual maintenance, for the payor, is that financial circumstances might change, but the obligation to pay doesn’t. The downside to the recipient is that while circumstances might change for the worse, (loss of job, disability) but the maintenance obligation can’t be increased as to time or amount.
Can Parties Agree that Maintenance Can Be Modified as To Amount and Not Duration or Duration, but Not Amount?
Yes. The Parties can agree that maintenance can be modifiable as to amount or duration; but this needs to be explicitly stated in their Separation Agreement.
What if A Party Is Voluntarily Underemployed?
If a party is seeking maintenance is voluntarily underemployed, the court can take this into account pursuant to Section 14-10-114(c)(V), C.R.S.
How Do I Prove My Spouse Is Voluntarily Underemployed?
If a party believes his/her spouse is voluntarily underemployed and that his/her potential income is much higher than currently earning, a vocational evaluation can be requested. There are experts who do evaluations to determine what a Party’s income potential is, how long it should take to generate that level of income, etc. The court can then utilize that Party’s potential income as its basis for calculating maintenance.
Is Maintenance Paid Tax Deductible to The Payor?
Not anymore. For agreements prior to December 31, 2018, maintenance paid was tax deductible to the payor and taxable to the payee. Maintenance orders after December 31, 2018 are not tax deductible to the payor nor taxable to the payee.
If I’m a Domestic Violence Victim, Will I Get More Maintenance?
Not in and of itself. If as a result of domestic violence a spouse is unable to generate income or has extensive medical bills, the court can consider this, just like any other inability to work or debts. The court can’t order maintenance as a punishment for domestic violence.
What Can I Do to Get Temporary Maintenance if My Spouse Refuses to Pay Anything until A Judge Orders It?
Domestic relations courts are court of equity. The court, especially at the temporary orders stage looks at whether the spouses are working together to responsibly divide the marital estate and preserve marital assets or whether one spouse is financially punishing the other. If one spouse has typically earned all the income, the judge will not be amused by his/her refusing to assist the other in the transition period. Often a judge will rule more harshly against a litigant who refused to pay anything until a judge ordered them to.
How Is Temporary Maintenance Different than Maintenance at Permanent Orders?
At temporary orders, the court is helping the family move towards dissolving the marital partnership and transition into two households. The court may be more likely to use the maintenance advisory guidelines at temporary orders recognizing that permanent orders may be different and that the financial lives of the individuals are more intertwined at temporary orders. At permanent orders, the court reconsiders the factors and very often orders a different amount than was ordered at temporary orders.