In marriage, spouses often divide the tasks of child rearing, homemaking, providing income, etc. In divorce, legal separation or annulment, parties usually find themselves with education, career experience levels or separate property (property acquired outside the marriage) that leave them with different abilities to provide for themselves and their families, once the marriage has ended. To address this issue, Colorado law provides for maintenance (known in many states as “alimony”) or spousal support. The primary statue is §14-10-114, C.R.S.
Maintenance is intended to provide for the reasonable needs of divorced persons who lack sufficient property, education, or employment income to provide for themselves. For maintenance to be awarded, it must be requested at the time the petition for divorce is filed, or in the response to the petition. The court considers many factors in determining maintenance, such as the property division (and debt division) pursuant to the divorce, the parties' standard of living during the marriage, the length of the marriage, the age and health (both physical and emotional) of the parties, and the payor spouse's ability to pay maintenance. Other conditions may include any child support being paid (including for children of prior marriages) and how long it might take the payee to obtain education for employment. Notably, the statute indicates that maintenance will be awarded "without regard to marital misconduct". Generally, courts perceive maintenance as "rehabilitative", i.e., provided to allow the receiving spouse opportunity to become self-sufficient. A primary motivation of the court in awarding maintenance is to limit any potential reliance by the parties on state resources as a result of the divorce.
Maintenance may be modified where there is a substantial change in circumstances, unless the parties have agreed at the time of divorce that maintenance will be non-modifiable.
Amount and Term
Maintenance is within the discretion of the court, i.e., there is no automatic right to maintenance, regardless of the parties' needs. The maintenance statute is in the nature of guidelines, intended to provide some uniformity throughout the state. If the court deviates from the guidelines, it must provide a rationale for doing so. Generally, where the parties have a combined gross income of less that $240,000, courts calculate the amount of maintenance by subtracting fifty percent (50%) of the payee's monthly income from forty percent (40%) of the payor's monthly income. Above $240,000, the court's discretion in awarding maintenance is not bound by the guidelines. Notably, determination of a party's income is subject to argument, particularly as to unemployment and underemployment.
Maintenance is not usually awarded for marriages lasting less than three years. The term of the maintenance increases with the length of the marriage, varying between approximately one-third the length of the marriage for shorter term marriages, up to one-half the length of the marriage for longer term marriages. In marriages lasting more than twenty years, the court has the discretion to award maintenance for the duration of the payee's lifetime; however, this is generally occurs only where a party has very poor employment prospects due to health or age. Maintenance terminates at the death of either party. Maintenance also terminates upon the remarriage of the receiving party, unless the parties mutually agree otherwise.
Where a couple's combined gross annual income is less than $75,000, there is a presumed level of maintenance calculated pursuant to the 50%/40% formula indicated above, regardless of the length of the marriage. This presumption requires the court to make such an award at a temporary orders hearing, unless the potential payee can, through evidence of unusual circumstances, successfully argue against the presumption, or the parties agree, with the court's concurrence, that temporary maintenance will not be paid.
If the couple's combined gross annual income exceeds $75,000, there is no presumption of temporary maintenance; however, either party may still seek temporary maintenance. While the court may use the 50%/40% guideline, the court is not required to do so, making this one of the more unpredictable aspects of maintenance generally.
The Colorado Judicial Branch provides forms and instructions for addressing maintenance here.
Maintenance or Alimony/Spousal Support
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