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.

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