Modifications of Maintenance are controlled by C.R.S. 14-10-122 which provides:
[T]he provisions of any decree respecting maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair....
Note: This page does not apply if you have a contractual maintenance obligation, that is, one where the parties agreed that the maintenance amount and term could not be modified in the future. If you believe your separation agreement contains a contractual maintenance obligation please call our office for more information.
The first step in modifying maintenance is to confer with the other party. A party cannot file a motion to modify maintenance without first discussing the modification with the other party.
In their motion, the party requesting a change will describe why a change is warranted. It's important to explain all of the changes that have occurred and why the current order is now unfair. A change in circumstances can be a lot of things but generally speaking it is a change in income. A common example is that the paying party makes less than what they did at the time the original order so they request a reduction in the amount of maintenance.
Once the motion, is filed the other party has a chance to file a Response stating why they disagree with the requested change. The party requesting the change can file a rebuttal (called a Reply) to the Response.
After the Motion is filed, the Parties must complete mandatory disclosures pursuant to C.R.C.P. 16.2(e). Read more about Mandatory Disclosures.
The judge will require the parties to engage in mediation before permitting them to go to a hearing. Mediation is a structured negotiation where the parties work with their attorneys and a mediator to settle the dispute. An agreement only occurs at mediation if both parties agree. No party gets to unilaterally run the show at mediation. In the vast majority of cases, the parties will settle the motion to modify maintenance without requiring a hearing with the judge. The settlement can occur at virtually any time prior to an order on the motion being issued by the court and it does not have to occur at mediation. The benefits of settling without going to a hearing include saving thousands on attorney fees and also removing the uncertainty of leaving the decision up to a judge.
If the parties are not able to settle, the motion will proceed to a hearing. At the hearing, the judge will hear testimony and consider exhibits submitted by the parties to decide whether the motion meets the statutory requirement for a modification. If the judge agrees that the requirements have been met, he or she will issue a new order for maintenance. If the judge disagrees, the Motion will be denied and the original order will stay in place.
If either party disagrees with the judge's decision they may ask the judge to reconsider the decision or appeal to a higher court. However, these options should not be relied upon because they are much less likely to succeed.
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 modifying maintenance, please do not hesitate to call our office at (720) 295-4196 or email [email protected]