Maintenance
Maintenance, as it is known in Colorado, or alimony, as known elsewhere, is financial support that is paid to a former spouse. It is a mechanism for ensuring that both parties to a marriage have the ability to pay their living expenses after their legal status as “spouses” is dissolved. An award of maintenance is not appropriate in every case. It depends on the finances of divorcing (or legally separating) parties, and parties’ respective abilities to support themselves after their divorce is decreed. A spouse who has income adequate to support him- or herself may not be a candidate to receive maintenance. Likewise, if a spouse is allocated income producing property, the income produced may be sufficient to meet that spouse’s reasonable monthly living expenses, obviating their need to receive maintenance. In cases where parties are confident of their abilities to support themselves post-divorce, the right to seek maintenance is waived. A claim for maintenance that is waived at the time parties divorce can never later be asserted by one party against the other party to that marriage.
The Colorado legislature sought to achieve consistency in maintenance awards from judge to judge and jurisdiction to jurisdiction across Colorado through the passage of C.R.S. 14-10-114, effective January 1, 2014. The statute lays out a formula for marriages lasting a minimum of three years and a maximum of twenty years, for calculating a maintenance amount and duration (the number of months the monthly maintenance amount should be paid) as a starting point for judges to consider in crafting appropriate maintenance awards. Judges are accorded discretion to deviate from the amount and duration indicated by the formula under the specific circumstances presented in a given case.
A maintenance award under the maintenance statute is modifiable if post-decree either party experiences a “significant and continuing” change in their financial circumstances. Neither the statute nor case law provides a bright line test for what constitutes a change that is “significant,” or for how long it needs to last to be deemed “continuing,” as opposed to a merely temporary setback. If parties cannot agree, a Court will need to decide whether “significant and continuing” changes have been proven by a party who files a motion to modify maintenance, and whether those changes rise to a level justifying entry of an amended maintenance order.
By agreement, parties can specify that maintenance set forth in their Separation Agreement is “contractual and non-modifiable.” If they do so, the Court loses jurisdiction to entertain any later motion filed by either party to modify the maintenance amount and duration agreed upon at the time of divorce. Contractual and non-modifiable maintenance ensures long-term certainty, both for the party paying maintenance as well as for the party receiving it. Frequently a party who plans to earn much more in the future seeks contractual and non-modifiable maintenance as a hedge against the risk that a much higher maintenance amount would be indicated under the formula if the receiving spouse moved to modify maintenance years after the divorce was decreed. On the other hand, a party receiving maintenance can avoid the possibility that the paying spouse will undergo a severe financial setback in future years and seek to lower the maintenance amount, to truncate the number of months remaining to pay it, or seek to terminate the maintenance obligation all together.
Marriages of less than three years’ duration are frequently deemed not appropriate for awards of maintenance. For marriages lasting longer than 20 years, and depending on whether one party may have been out of the workforce for all or a substantial portion of the marriage, courts may exercise discretion to continue maintenance for more than half the length of the marriage, the duration specified for long term marriages up to the twenty year length at which the statutory formula tops out.