Alimony in 2012 and Beyond
Alimony comes from the Latin word, “alimonia“ meaning sustenance and means, therefore, “the sustenance or support of the wife by her divorced husband and stems from the common law right of the wife to support by her husband.” Allowances which husband, by court order, pays wife for maintenance while they are separated or after they are divorced, is a common way for a court to order a husband to pay alimony to his wife. But in its strictly legal sense, “alimony” relates to the provisions made for the necessities of life by ordering one party to pay the other monies so that the other party can afford to live. See Black’s Law Dictionary definition.
Colorado’s law regarding “Alimony” is found in Colorado Revised Statute Section 14-10-114, which is entitled: “Maintenance.” This law is located within the Colorado Uniform Dissolution of Marriage Act. Colorado’s law permits either a husband or a wife, or both, to seek court orders requiring the other party to pay Maintenance. The party asking the Court to enter an order for Maintenance to be paid to that person is called the “recipient.” The party who is ordered by a Court to pay Maintenance is called the “obligor.” The term, “Alimony” is no longer used in divorce or legal separation cases, but rather, it is called ‘Maintenance’. Maintenance is requested in either the petition or the response which is filed with the court.
There are factual realities that exist in every case where one party or the other, or sometimes both parties, want an order from the court regarding Spousal Maintenance. Usually the spouse who is either not producing any income or who has a significantly lower earning capacity, wants maintenance for as long as possible. Since the parties presumably had a certain standard of living and lifestyle while they were together, it should be clear in these uncertain economic times that for most people a divorce means that they will no longer be able to continue to enjoy that same lifestyle while apart. The standard of living of the parties during their marriage is but one of the factors that a Court must consider in any maintenance case. The vacations, new car purchases, gifts to children and family, household furnishing purchases, etc. that the parties were able to enjoy during marriage will almost certainly be impossible to achieve once the divorce becomes final. The old adage that ‘two people can live cheaper than one’ is applicable in every maintenance case.
In 2012, where the economy and job outlook is gloomy, some judges may take the economy into account when ordering maintenance. Other judges, who I have tried cases in front off, have a very different view: “If you are physically able and mentally sound, you can and should be working.”
In our society, where men are still the major income producers in the family, the stay at home mom remains as the best example of why a wife’s need for maintenance will remain strong. In the majority of cases where Spousal Maintenance is at issue for the court, side by side budgets are extremely useful so that a realistic comparison can be made as to what the parties’ independent costs of living will be once they live apart. While in marriage, “the economic lives of spouses are frequently intertwined in marriage and that it is often impossible to later segregate the respective decisions and contributions of spouses.” See CRS Section 14-10-114 (1). This is particularly true when one spouse has not had any work history or income during the marriage and has been totally dependent on the spouse who has been the “breadwinner.” Here are some actual examples of cases where Spousal Maintenance has been decided by a judge:
Case Number 1: The parties had been married for 30 years. During that time, Husband was the main income earner and the Wife was a stay at home mom, not earning any money in a job or career. After the youngest child left high school, Wife went back to college to obtain a degree in nursing. Because of family finances, Wife never completed her nursing degree. During the hearing before the judge, the judge heard the facts of the parties’ marriage and their incomes and the judge entered an order that said that the parties’ marriage is considered to be a marriage of long duration during which husband was the breadwinner and afforded the family a standard of living that they would not otherwise have had but for husband’s career and professional advancements. The judge entered an order that Husband would pay Wife, Spousal Maintenance each month, in the amount of $3000 which was roughly one-third of Husband’s monthly gross income. All Spousal Maintenance payments would be considered income to the Wife and Spousal Maintenance would continue to be paid unless Wife remarried or either party died.
Case Number 2: Both parties entered their marriage with college degrees and had good paying jobs. The parties had one child, age 10, when they appeared before the judge for their divorce. They agreed to a shared parenting plan with Wife having the child during the school week and Husband having the child from Friday’s after school until Monday mornings when school began, for 3 weekends each month. During the parties’ 14 year marriage, Husband progressed in his profession as a Manager, and when the case was heard by the judge, was earning $89,000 a year. Wife was earning half of what husband was earning, or approximately $45,000 a year. Wife claimed that she needed short term maintenance because of the length of the marriage and because of the difference in the parties’ incomes, which left her at a disadvantage. The Court wanted to know the budgets of both parties and what properties the parties were dividing. The judge decided that since the family home was going to be sold and the parties were to divide the net proceeds from the sale, that Wife would not have the same financial resources as husband to obtain another home and that therefore, it was fair and just to order that Husband pay Wife spousal maintenance of $1,000.00 a month for 25% of the length of the marriage or for 3 years and 5 months.
Case Number 3: When the parties were married, Husband had been in the U.S. Air Force for a year and Wife was an unemployed High School graduate. During their first year of marriage, Wife gave birth to the parties’ daughter while Husband was deployed. Husband found out that Wife was seeing another man while Husband was out of the country on deployment orders and Husband filed for Divorce, while he was still deployed to Afghanistan. Husband refused to pay Wife any Spousal Maintenance and would not agree to pay any Child Support. At the time of the filing of the divorce case, the parties had been married for 18 months and the child was 9 months old. The judge ordered that Husband pay Wife Temporary Spousal Maintenance based on the formula in Colorado’s law of: 40% of Husband’s gross pay. When the case went before the judge for a Final hearing, the judge looked at the short duration of the marriage, and the judge ordered only Child Support be paid by Husband, but no Spousal Maintenance once the child reached age 2 ½ years of age.
Case Number 4: Husband and Wife were married in 1996 right after Husband completed his internship as a physician. Wife also completed her education as a doctor, but only worked part-time because she was also working in the home as a stay at home mother and stay at home wife, which allowed Husband the opportunity to advance his career and become extremely successful. After being married for 10 years, Wife developed numerous and severe physical disabilities that prevented her from working. Wife was determined by Social Security to be 100% disabled. Husband filed for Divorce and only wanted to pay Wife, Spousal Maintenance for 2 years, because he insisted that Wife could earn some income. The Court entered its orders that because of the seriousness of Wife’s disabilities and medical condition and need for ongoing care and treatment that Husband had paid for during the marriage and that Husband had provided Health Insurance for Wife and the children, that Husband would be ordered to pay Wife Spousal Maintenance for the rest of Wife’s life or until she remarried.
The determination of Spousal Maintenance by a judge usually will not be disturbed by an appellate court because Spousal Maintenance is left to the sound discretion of the trial court. This means that Spousal Maintenance is not something that is likely to be overruled by a judge in the Colorado Court of Appeals. The length and amount of Spousal Maintenance, in the state of Colorado, varies a great deal based upon the locality of the court. This is why it is always important to have a lawyer who practices in the particular locality where the case is pending so that a proper strategy can be developed.
Any time there is a contested hearing involving Spousal Maintenance, the court has to fully consider all of the elements in the Colorado statute. These kinds of cases are always difficult and not easy to predict for an outcome. Because of what is at stake, I advise parties going through a divorce to have legal counsel to assist them in the nuances associated with this legal issue. An experienced Family Law Attorney or Divorce Lawyer should know firsthand the kinds of facts and ranges of Spousal Maintenance that a judge looks for in entering these kinds of orders.
“To Divorce or Not to Divorce:” That is the Question.
As is the situation in most of the United States, the Divorce rate goes up and down depending on a variety of factors. According to a report in the Denver Post on Monday, May 23, 2011, a Boulder therapist gave the opinion that the present divorce filings are down due to the economy and the impact on housing. While housing markets seem to fluctuate a great deal, there is no empirical data to back up the Boulder therapist in this regard. Certainly, the economy does have an overall impact on why people choose to remain married or go through the divorce process.
In my practice as a Family Law Attorney, clients have told me that the following factors were of primary consideration in wanting to obtain a Divorce or Legal Separation, and none of these reasons indicated that they wanted to stay married, just because the value of the marital home had dropped:
Common Reasons for Wanting a Divorce or Legal Separation:
1. While I was on a military assignment or deployment, my spouse cheated on me, emptied out our bank accounts and ran up the credit card debts;
2. I found out that my spouse was having an affair and I no longer can trust my spouse, even though I still love him/her;
3. My spouse has a drinking problem and when he drinks he becomes physically and emotionally abusive to me and the children. He also has had 2 DUI convictions and does not seem to want any help;
4. My spouse left Colorado with the children and have kept me from my children and now I have no contact whatsoever with my children;
5. My Husband and I have grown apart, we no longer love each other, and behave more like roommates than a married couple;
6. My Wife has no financial responsibility and has run up huge credit card debts that I can no longer tolerate;
7. There is so much anger and tension in our household that I can not stand living in the same house as my spouse and I want it to end!
There is a real reason why most of the states in the United States have enacted “No Fault Divorce Laws.” It is my firm’s belief that no one should be forced to stay in a marriage which does not bring them happiness. A friend of mine, who is a Family Therapist, told me that it is far better for the emotional health of children to live primarily with one parent or the other, rather than be kept under one roof while parents fight and argue under the pretense of being in a happy marriage. To remain married to someone just because the value of the marital home is in decline, is a proposition that defies logic and only enhances the animosity and level of tension that I see in my law practice from people who want to move on with life and finalize the dissolution of their marriage.
Divorce Dispute and the LA Dodgers
As the World Series was set to commence between the Texas Rangers and St. Louis Cardinals on October 19, 2011, one of the biggest high profile Divorces in many years has come to a close between Jamie and Frank McCourt, who are co-owners of the Los Angeles Dodgers. The McCourt’s ownership of the Dodgers became the central theme of their California Divorce case. According to the Associated Press, “Frank and Jamie McCourt have reached a settlement in a feud over control of the Los Angeles Dodgers, paving the way for a showdown in bankruptcy court between the embattled team owner and Major League Baseball.”
As is common in many high profile divorce cases, whether in the entertainment/show business industry or in professional sports, settlements are often kept privileged until someone leaks the terms of the settlement to someone in the media. The McCourt settlement was released to the media on October 18, 2011, by, “a person familiar with the settlement,” on condition of anonymity. The usual, very private terms of a divorce settlement in the average case, is usually kept confidential. But in the world of entertainment and sports celebrities, those very private divorces often rock the media with sensational headlines. Such has been the case with McCourts and the LA Dodgers, one of Major League Baseball’s most storied franchises.
One of the ways to prevent the terms of a private divorce settlement is to reach “confidential” settlement agreements. Staying out of court and away from the spotlight is a goal of many professional athletes, movie stars, and team owners. Property settlement agreements and parenting plans that are filed with the court can be “sealed” under certain circumstances in many instances. Otherwise, when marriages end and the divorce court takes over, all of the usual ugly and very personal information are likely to be exposed in a very public divorce court, where judges seldom are willing to deny the media the right access under the First Amendment. While there are many reasons to avoid a public divorce trial, maintaining privacy and dignity must be a major factor whenever considering the value of a full and final divorce settlement.
Deployment and Divorce
There exists clear evidence that repeated deployments have had and continue to have profound impacts on military families. This is illustrated by the steady increase in the divorce rate in every branch of the service affected by deployment to Afghanistan and Iraq.
The following article highlights the astonishing relationship between deployments and divorces.
“THE TOLL OF WAR HITS MILITARY FAMILIES IN FORM OF INCREASED DIVORCE RATE” By The Associated Press 11/28/09
“Washington>> The toll for a nation long at war is evident in military home: The divorce rate in the armed forces edged up again in the past year despite many programs to help couples, and the rate now is a full percentage higher than around the time of the attacks of Sept. 11, 2001.
There were an estimated 27,312 divorces among roughly 765,000 married members of the active-duty Army, Air Force, Navy and Marine Corps in the budget year that ended Sept. 30, the Pentagon said Friday.
That is a divorce rate of about 3.6 percent for fiscal year 2009, compared with 3.4 percent a year earlier, according to figures from the Defense Manpower Data Center. Marriages among reservists failed at a rate of 2.8 percent, compared with 2.7 the previous year.
Air Force Maj. April Cunningham, a Defense Department spokeswoman, said the changes from 2008 to 2009 were relatively small because of myriad programs offered by the services.
As in previous years, women in uniform suffered higher divorce rates than their male counterpart: 7.7 percent in 2009, compared with 3 percent for men.
There is no comparable annual system for tracking the national or civilian divorce rate, though the Centers for Disease Control and Prevention said in 2005 that 43 percent of all first marriages end in divorce within 10 years.”
For a service member who is away, either on a deployment or serving on foreign soil, a divorce may be necessary to protect that service member’s rights, particularly when a spouse is engaging in destructive behavior such as:
- Using the service member’s good credit to run up debt.
- Relocating the children without the service member’s knowledge.
- Making financial and parenting decisions that are detrimental to the wishes of the service member.
Therefore, it is important to understand that, despite a deployment, a service member can seek the protections of his or her rights in a divorce case. An extremely qualified lawyer, who is familiar with the urgency of the factors impacting the marriage, should be consulted. In my experience, the goal of establishing the necessary court orders sends a strong message to the stateside spouse that, further breaches of the marital relationship will not be tolerated.
With my history of assisting hundreds of military service members, each year, I can immediately provide legal counsel no matter what corner of the globe a service member may be serving.
Relocation of a Child, From Colorado
When a parent, who is considered the primary residential parent of children, wishes to relocate from Colorado to another state, the law will require the primary residential parent to have either of the following:
- A court order from the judge, granting the primary parent’s request to leave Colorado with the minor children;
- A statement, signed by both parents, in which the non-moving parent authorizes the relocation;
It is a good idea for any parent, who is the primary residential parent, to have the court enter an order granting the relocation request so that the moving parent can rely upon the Court’s Order, should that be necessary in the future.
Relocation is also known as “Removal.” Removal is the “permanent relocation” of the children from the State of Colorado. A relocation which “substantially changes the geographic ties between the child and the other party” is a legal issue that a judge must determine in the absence of the parent’s agreement to the contrary.
A vacation or family trip with children is not the same as “relocation or removal.” With any vacation or family trip, a parent is presumed to understand that the child is leaving on a certain date and will return when the trip or vacation ends. Therefore, vacations that either parent may have with the children do not need the permission of the court as long as the parent doing the travel is authorized to do so.
Any agreements made by parents that authorize a parent to leave Colorado, should be specific as to the notice that the parent moving will give to the non-moving parent, to include:
- All relevant contact information, phone numbers, residential address and business or employment information;
- The names and addresses of all health care providers, such as doctors and dentists;
- The location of any schools where the children will be attending, together with a list of the names of teachers;
Whenever “relocation” occurs, it is essential to revise the parent’s parenting plan. Important consideration will need to be given to the following:
- Developing a new parenting time schedule that takes into account the distance between the parents after the relocation takes place;
- The costs, if any, for travel in order for the non-moving parent to have parenting time. Colorado law provides that this is a cost or expense that is to be shared by both parents, proportionally;
- Establishing a plan that provides for regular telephone, Skype, text, email, or other forms of contact, to and from the children. In many cases, a regularly planned time throughout the week is necessary so that communication with the children is not interrupted;
- Holiday and Summer Vacation Parenting Schedules need to be determined. These schedules should that take into consideration the distance between the parents and any adjustments to the existing Parenting Plan.
The law in Colorado will not dictate that a parent cannot move from Colorado. It only dictates that children may not be able to move from Colorado. When a parent wishes to move from Colorado with the children and there have been no prior orders entered by a Court, the “best interests of the children” must be considered. When a prior order of the Court that defines the parent’s parenting time schedule exists, the court will be required to follow CRS Section 14-10-129, which is entitled: “Modification of Parenting Time.” This usually means that a verified motion must be filed with the Court by the parent who is seeking to leave Colorado with the children. Because any relocation of children from Colorado will necessarily impact the non-moving parent’s visitation schedule, there are specific circumstances that must be proven to a court before a request to relocate will be granted.
The issue of relocation or removal is a very complex area of Family Law in Colorado. There are many factors which will determine whether the request for relocation is likely to be granted by a judge. As an example, economic or employment opportunities in another state, without more, is usually not the sole determining factor that will sway a judge in granting a request to relocate from Colorado with a child. Valid and substantial reasons for relocation can make a difference in either the success or failure of a request to relocate from Colorado with children.
I have represented many clients over the years who have been either the parent who has wanted to move away with the children, or have been the parent who opposes the relocation. In either case, I can tell you that this is an area of the law that requires a great deal of experience on the part of the lawyer. Actual courtroom experience in hundreds of cases that have dealt with the legal issue of “relocation or removal,” has no substitute, when there is so much at stake.
FATHER’S RIGHTS ARTICLE
Recent trends in Child Custody cases show that Fathers are more and more likely to be awarded equal parenting time, in custody and divorce case. I have found that Colorado judges are extremely fair when deciding this issue. The main focus for the Court in any dispute involving custody or parenting time centers on what is best for the children. How will the children adapt to the situation and how will any shared custody arrangement be impacted when parents do not live near one another. There is a lot of reading material and research in this area of the law from respected experts. The American Bar Association, Family Law Quarterly is a great source of information as well.
“Father’s Parenting Rights” is a legal concept that stands for the proposition that Fathers have equal parenting rights as Mothers . When lawyers say that they are “Father’s Rights Attorneys” they are really saying that they concentrate on representing men, not women in these kinds of cases. Any time I have represented a Father, I have made it a point, to always tell the judge why client is best suited to fulfilling that parent’s role as an equal parent to the children, regardless of sex. History has shown that Father’s Rights is a relatively new concept, and that Father’s have made tremendous strides in demonstrating their significant role in being able to co-parent their children. While any child custody courtroom dispute may be difficult or costly, for the majority of Father’s those battles have been well worth the effort when considering what is at stake. A fit and proper parent desires to be fully engaged in any parent-child relationship.
There is no doubt that Colorado is one of the jurisdictions in the United States that does not prejudice dads in their quest to be considered equal with moms, in custody matters. This statement of equality for both Fathers and Mothers is stated in the Colorado “best interests” law (Colorado Revised Statutes Section 14-10-124):
“The general assembly finds and declares that it is in the best interests of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.”
If you read the Colorado law, you will see that Father’s have the exact same parenting rights as Mothers. The Court is not allowed to discriminate against Fathers or give Mother’s any kind of edge in a parenting or custody dispute. When a Mother argues in court that she should be the primary residential parent because she has been a stay at home mom, that factor alone should not sway a judge. Just because Father has been the family breadwinner and has worked a full time job or has had a full time career, should not disqualify the Father in his request to obtain equal parenting rights. In fact, if anything, both the Father and the Mother, are on equal playing fields unless there is evidence to indicate one of the relevant endangerment factors such as:
- Domestic Violence;
- Substance or Alcohol Abuse;
- Child Abuse or Neglect;
- Physical or Mental Health;
As any parent considers their future roles in their children’s lives, it is important to remember that, the ability of parents to cooperate with one another for the common good of the children is a value that overrides any personal dispute that parents may have with one another. No matter how bitter the relationship between parents may be, raising healthy children should be the focus of any parenting or custody dispute. As I have heard numerous judges say, “the mark of a good parent, whether it’s the Mother or the Father, is that parent’s ability to place the needs of the children above that of the parent’s individual needs. When parents act together to provide their children with a positive, loving, nurturing environment, they do so with the knowledge that their combined efforts will result in their children growing up to be exemplary adults. The evidence and research shows that children who have two parents fully involved in their lives, are better able to handle the stresses of life and the formative years that shape who they become as adults.
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