Written by attorney Culver Winston Van Der Jagt

Proposed Spousal Maintenance Bill in Colorado

Spousal maintenance is what the rest of us call Alimony (sometimes also called Palimony). A court generally awards maintenance in order to find common financial ground between the two parties based on the couple’s past earnings. Maintenance is intended to be a substitute for marital support that can be used, for example, to ease a spouse’s transition into the work force and prevent the spouse from becoming dependent on public assistance.

1.How would the proposed legislative change impact the current process in a divorce?

The bill sets forth “guidelines" as to amount and term, for determining an award for spousal maintenance as temporary or permanent orders in proceedings for dissolution of marriage, legal separation, or declaration of invalidity filed on or after January 1, 2014.

2.What is the scope of the “guidelines"?

The “guidelines" seek to establish a “norm" for amount and term of maintenance for marriages of at least 3 years where the parties’ annual combined gross income does not exceed $240,000.

3.If one spouse gets half the property, why would they “need" a forced maintenance award on top of that?

The bill maintains the overall threshold standard of need contained in current law that the court must consider before entering a maintenance award. The threshold has to do with amount of property received as well as ability to support oneself with independent income. This gets more complex, but that’s the general idea of the threshold that needs to be met in order to walk into the room where maintenance alimony can be discussed. In other words, this is a guideline, not a mandatory formula. Some of us are worried about cases where the guidelines would be a poor fit. Child support is also generally calculated based on “guidelines," although many judges seem to treat those calculations as a mandatory formula. I’ve seen plenty of cases where the formula just doesn’t fit and it causes a huge problem. It is important to remember that the court maintains discretion to determine the maintenance award after making the required findings and considering all of the provisions of the law, but “culture" in the legal system often unfortunately deviates from black letter law. Hopefully no judge will feel “forced" to follow the formula in every situation, even if they use it in typical cases. They should certainly consider the amount of property allocated to the recipient spouse before considering maintenance to that spouse.

4.What happens if a spouse who receives maintenance remarries?Doesn’t remarry, but lives with someone else?

In the proposed legislation, maintenance awarded at permanent orders may be suspended, reduced, or modified based upon the cohabitation of the recipient spouse when the payor spouse can show that the recipient spouse has maintained a primary residence with another person as a couple for 6 months after the entry of the initial maintenance order. Previously, there was no statutory recognition that maintenance should stop with cohabitation with another partner.

5.If that couple breaks up, then what?

According to the proposed legislation, maintenance may be reinstated upon the termination of the recipient spouse’s cohabitation with another person, but shall not be reinstated beyond the original maintenance term. This will be an interesting area of the law that has not generally existed up to this point.

6.What happens when one party retires?

The bill amends the current statute for modification of maintenance by clarifying when maintenance terminates and by creating a presumption of good faith in favor of the payor spouse once he or she reaches full social security retirement age.

7.Why do we need such a fixed formula? Can’t we just let the judges figure out what is fair?

Because the statutes provide little guidance to the court concerning maintenance awards, there has been inconsistency in the amount and term of maintenance awarded in different judicial districts across the state in cases that involve similar factual circumstances; and nevertheless, a 6 year maintenance award on a 5 year marriage was fair given the circumstances in one recent case I’ve seen. In another case with the same duration of marriage, $1/year in maintenance for three years was the appropriate award given the circumstances – and everyone involved even agreed that that was fair. Everyone agrees that advisory guidelines would probably help establish more consistent rulings across the state. It appears that the house wants the rules to be fixed guidelines and the senate wants the rules to be “advisory" guidelines. I’m sure the Bar essentially would agree with the Senate.

8.Let’s talk numbers - How much would the guideline maintenance be under the guidelines?

For combined gross income of up to two hundred forty thousand dollars and duration of marriage of at least three years. The amount of maintenance under the guidelines is equal to forty percent of the higher income party’s monthly adjusted gross income less fifty percent of the lower income party’s monthly adjusted gross income; except that, forty percent of the party’s combined monthly adjusted gross income. This “except that" language that ties back to a percentage of the gross income is an interesting idea…The remaining loophole that I see here is for cases of “divorce flu" – that is where a person essentially loses their job right around the time of a filing for divorce in a “bad faith" effort to get a larger award of spousal support. I’m personally annoyed by how often this happens in a divorce. Frankly, people should be attributed income by a corresponding formula at a minimum based on their own employment history. This is going to be the new divorce battleground. Stay at home parents need to know that their divorces are going to get expensive if they want to continue to stay at home.

9.What is the longest and shortest duration for maintenance under the proposedlegislation (why should I care about this)?

The shortest duration, according to the guideline terms would be 11 months of actual maintenance, which correlates to a marriage lasting 36 months. This percentage under the guidelines would correspond to 31%. This means, the formula is calculated by the number of months of maintenance divided by the number of months married. (11/36 = 31%). What we see under the guidelines is that the longer the marriage is, the higher the percentage of time (compared to the duration of the marriage) maintenance will be awarded for. For example, if a couple were married 10 years (120 months), the term of maintenance would be 54 months, which would be 45% (54/120). Once a marriage reaches 12 ½ years, it has met its top threshold of 50%, meaning, however long the marriage lasts past 12 ½ years, the calculation for term of maintenance will always be half the length of the marriage according to the guidelines. The basic conclusion, is that it looks like maintenance awards are about to increase, both in duration and amount in the state of Colorado.

Call an attorney before you file a divorce case in Colorado, especially if you plan to file during 2013. You need a good plan in place before you operate on the assumption that the law will be the same by the time the court hears your case (because the law likely will be different by the time your divorce is granted by the court).

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