Maintenance
In Colorado, alimony is called maintenance. The purpose of maintenance is to provide support to a spouse after the divorce if that spouse needs support and the other spouse has the ability to pay support. An award of maintenance must be fair and equitable and made without regard to marital misconduct. C.R.S. 14-10-114 provides the judge with authority to make an award of maintenance in a case.
Generally, the parties will attempt to settle the issue of maintenance along with all other issues in the case. This can occur during mediation or informally outside of the mediation context. If the parties are unable to agree on the issue of maintenance, they can leave the issue up to the judge.
In making the decision regarding maintenance, the judge follows a three step process:
- Initial findings
- Determine amount and term of maintenance
- Threshold test
Initial Findings
The first step is for the court to make initial findings regarding: 1) each party’s income, 2) the marital property apportioned to each party, 3) the financial resources of each party, and 4) the reasonable financial need as established during the marriage.
Reasonable financial need as established during the marriage basically means the lifestyle of the parties during the marriage. If the parties lived relatively modestly during the course of the marriage, they can expect to live that way afterwards as well. Similarly, if the parties lived an extravagant lifestyle while married with vacations, new cars, dining out, and lots of discretionary spending, they can expect to enjoy the same lifestyle after the marriage.
Amount and Term of Maintenance
The judge first considers the guideline amount and term of maintenance. This guideline amount is a calculation based on the length of the marriage and the income of the parties. The court is not bound to follow the guideline amount and term and will consider other factors. There is no maintenance guideline amount for marriages which last less than three years. The longer a marriage lasts, the longer the term of maintenance pursuant to the guideline.
After examining the guideline, the judge will consider factors listed in C.R.S. 14-10-114. These factors are:
(I) The financial resources of the recipient spouse, including the actual or potential income from separate or marital property or any other source and the ability of the recipient spouse to meet his or her needs independently;
(II) The financial resources of the payor spouse, including the actual or potential income from separate or marital property or any other source and the ability of the payor spouse to meet his or her reasonable needs while paying maintenance;
(III) The lifestyle during the marriage;
(IV) The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance;
(V) Both parties' income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary, and any necessary reduction in employment due to the needs of an unemancipated child of the marriage or the circumstances of the parties;
(VI) Whether one party has historically earned higher or lower income than the income reflected at the time of permanent orders and the duration and consistency of income from overtime or secondary employment;
(VII) The duration of the marriage;
(VIII) The amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse;
(IX) The age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses;
(X) Significant economic or noneconomic contribution to the marriage or to the economic, educational, or occupational advancement of a party, including but not limited to completing an education or job training, payment by one spouse of the other spouse's separate debts, or enhancement of the other spouse's personal or real property;
(XI) Whether the circumstances of the parties at the time of permanent orders warrant the award of a nominal amount of maintenance in order to preserve a claim of maintenance in the future;
(XII) Whether the maintenance is deductible for federal income tax purposes by the payor and taxable income to the recipient, and any adjustments to the amount of maintenance to equitably allocate the tax burden between the parties; and
(XIII) Any other factor that the court deems relevant.
Threshold Determination
After considering its initial findings, the guideline calculation of maintenance, and the statutory factors affecting the amount and term of maintenance, the court shall award maintenance:
only if it finds that the spouse seeking maintenance 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.
The judge’s award of maintenance will be drafted into a support order which will stay in effect until modified. Read more about modifying maintenance.
This page is only a brief overview of this issue and should not be treated as an authoritative guide. There is no substitute for advice from an experienced lawyer. If you have any questions about this, or any other issue, please do not hesitate to call our office at (720) 295-4196 or email [email protected].