If you are about to file for a Divorce in Colorado or you have a pending Divorce that has already been filed, you will want to have a complete understanding of Colorado’s Spousal Maintenance law, which is found in Section 14-10-114 of the Colorado Revised Statutes. In many states, this area of the law was under the heading, “Alimony.” The simple definition of Alimony as found in Black’s Law Dictionary is: Payments made from one spouse to the other, on a regular interval, to provide for the financial support of the spouse who receives same. A Court usually orders these kinds of payments when the spouse requesting “support” proves that there is a financial need for such support and the spouse who is being requested to pay “support” has a clear ability to pay what is ordered. When a judge issues an order for the payment of Spousal Maintenance, it confers a duty upon the obligor that support be paid for either a specific period of time or an indefinite period of time. An indefinite period of time usually means a lifetime duty of payment unless otherwise modified by orders of the court.
There are numerous factors listed in Colorado’s Spousal Maintenance law that you should discuss with an experienced Family Law attorney, along with the facts in your case, so that you have an understanding of what factors may or may not apply to your situation. Every case is different and sometimes it is not clear whether Spousal Maintenance is applicable. Either spouse may request Spousal Maintenance and either of them may also “waive” the right to receive Spousal Maintenance. When parties waive Spousal Maintenance, they must do so with knowledge of the guidelines in the law, and any such waiver, must be entered into, “freely and voluntarily.” This means that a party cannot waive Spousal Maintenance because of any threats or because of the existence of coercion. When the Court receives a written signed agreement that indicates either one or both parties are waiving Spousal Maintenance, there is specific language that must be contained in that agreement in order for a judge to approve the parties’ agreements. If a judge is not convinced that the parties knowingly have waived Spousal Maintenance or that they have disregarded the guidelines in the law or for other reasons, the judge does not have to approve the parties’ agreements.
When a Court accepts the parties’ written signed agreement that one or both parties “waive” Spousal Maintenance, it means that the Court will not allow that “waiver” to ever be modified in the future. This is an important and significant legal issue. In essence, a Court will lose jurisdiction to ever modify any such waiver of support in the future. Before “waiving” Spousal Maintenance, it is extremely important to have an understanding of the law, so you know what you are giving up.
Colorado’s Spousal Maintenance law is complex with many different provisions that must be taken into consideration when analyzing how the law may apply to your case. The legal issues involved in any maintenance case is not a matter that can be easily understood by a layperson. Without proper guidance and advice regarding Spousal Maintenance, long-term financial mistakes can occur that may not be able to be reversed. This is another reason, that I suggest the hiring of a qualified lawyer when confronted with this issue in any divorce action.
I am asked this question virtually every day in my practice: What is the most common situation where Spousal Maintenance is ordered by a judge? The answer to this question is going to depend on the specific facts of your case. However, according to Colorado law, a maintenance award is designed to balance the equities between the parties so that the party who lacks sufficient financial resources, future earning capacity and/or the ability to become financially independent, is not prejudiced. I see this kind of situation in those cases where there has been a long-term marriage and one of the parties has been a stay at home spouse/parent and the other party has been the long-term breadwinner in the family. Marriages over 5 years in length are usually most impacted by the Colorado maintenance law. Overall, maintenance is a problem that must be solved based upon the parties’ earnings or their capacity to earn an income. Often times this is not an easy or simple thing to understand, as earnings and incomes become difficult to pinpoint and go in many different directions. Keep in mind that the ranges of marriages, where the guidelines are to be considered, are those marriages between 3 and 20 years in length.
The guidelines include calculations for Spousal Maintenance and a formula is used to determine the amount that is recommended. Although the law calls the guidelines, “advisory” most of the judges will rely on the guidelines in entering their orders at either or both, Temporary Orders ad Permanent/Final Orders.
Lawyers, who practice Divorce Law, are required to be competent in this area of the law and must have specialized training and expertise in Colorado’s Spousal Maintenance law. As a client, you should not hire an attorney who has no actual courtroom experience or practical experience in this area of Domestic Relations law. A client is entitled to receive the very best legal advice that the client has sought.
The time to analyze whether or not this issue is present in any given case, must occur during the early phases of any given case so that there is adequate preparation done before mediation and before a court hearing. The building of a proper legal argument, either in favor of Spousal Maintenance or argument against Spousal Maintenance, takes a great deal of effort and time for the qualified lawyer. Some of these kinds of cases will require expert testimony from a CPA or other qualified financial expert that has courtroom experience.
Spousal Maintenance may be ordered by a judge at a Temporary Orders hearing or at a Final Orders hearing. When a party in a divorce is ordered to pay Spousal Maintenance at Temporary Orders, those payments must continue until a judge enters Final Orders. At Final Orders, the judge will be guided by the statute in deciding whether or not Spousal Maintenance will be ordered, and if so must enter written orders as to the amount of the payments and the duration of those payments. The guidelines spell out the suggested length of time when the court orders a maintenance award. As an example, in a 10 year marriage (120 months), when the Court orders that a spouse pay Spousal Maintenance, the guidelines reflect that those payments be made for a term of 54 consecutive months. Any award of maintenance by a judge is modifiable according to the law that governs modification. “Only after the property division has been made can the trial court determine, by application of the statutory standards, whether maintenance is necessary to provide for the reasonable needs of one of the parties. IRM Jones, 627 P.2d 248 (Colo. 1981); IRM Huff, 834 P.2d 234 (Colo. 1992);
Spousal Maintenance will terminate by operation of law upon the death of either party or when the party receiving maintenance, remarries. Parties may also agree in writing, usually in a document called a, Separation Agreement, the terms of Spousal Maintenance. As an example, when parties enter into an agreement that sets out an amount of support and the length of time that maintenance will be paid, that differs from the guidelines, is called a “contractual maintenance agreement.” While parties can agree in writing to contractual maintenance, a judge has no authority to bind the parties to a similar holding, as any award of maintenance by a judge is deemed, “modifiable” by terms of the applicable statute. It is not an easy or simple process to modify a judge’s award or parties’ written agreements when it comes to this issue.
When the United States Congress passed the, “Tax Cuts and Jobs Act of 2017, as signed into law by the president, it had tremendous implications for divorcing parties in Colorado regarding the legal issues surrounding Spousal Maintenance. After January 1, 2019, the entry of a Court Order, commonly called, a “Decree of Dissolution of Marriage,” where the court has ordered an award of Spousal Maintenance, will not allow those payments to be declared on federal tax returns as a, “tax deduction.” Additionally, the spouse who receives the payments of Spousal Maintenance will not have to declare what is received as, “income.” Recent legislation in 2018 by the Colorado legislature has addressed the impact of the federal laws on Colorado’s Spousal Maintenance statute. There will be adjustments made to the guidelines to compensate for the removal of the deduction and declaration of income on tax returns. This is another reason why the consultation of a financial expert or tax expert, such as a CPA, may be needed.