In certain circumstances, a spouse may obtain an award of temporary or permanent maintenance (alimony) from the other spouse. Maintenance may or may not be available depending on the particular facts of the case. Maintenance is designed to provide for the reasonable needs of the eligible spouse or civil union partner. (In this article, both spouses and civil union partners will simply be referred to as “spouse”).
When is Maintenance Available?
Generally, maintenance is only available when one of the spouses lacks sufficient property to provide for his/her reasonable needs and is unable to support himself/herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he/she not be employed outside the home.
Factors in Determining Maintenance
The court will consider various factors in determining whether to award maintenance. The court will consider each spouse’s gross income, the marital property awarded to each spouse, the financial resources of each spouse, and each spouse’s reasonable financial need as established during the marriage. A spouse’s “reasonable financial needs” are subjective and depend on the facts of the case. The eligible spouse is not required to consume all his/her property to be eligible for maintenance and is not required to show that he/she lacks the minimum resources required to sustain human life. Whether a spouse can support himself/herself through “appropriate employment” is also subjective, and the parties’ expectations and intentions established during the marriage are a primary consideration. The court may consider the time necessary for the eligible spouse to acquire sufficient education or training to enable him/her to find appropriate employment. The court may also consider the age of the eligible spouse, the eligible spouse’s physical and emotional condition, and the ability of the paying spouse to meet his/her own needs while meeting the needs of the eligible spouse. Marital misconduct is not a factor.
Amount and Duration of Maintenance
Once the court determines that a spouse is eligible for maintenance, the court must then determine an amount and duration of maintenance that is fair to both spouses. For marriages of three to twenty years duration in which the combined gross income of both spouses is $240,000 or less, Colorado law provides an “advisory” formula to help judges determine the amount and duration of maintenance. The judge must consider “all relevant factors,” including various statutory factors, in determining the amount and duration of maintenance. Judges do not have to order the maintenance amount and duration that the formula provides, and may order maintenance for whatever amount and duration the court deems fair and equitable to both parties based upon the totality of the circumstances. The court must base the amount and duration on the evidence presented in the case and must state the reasons underlying its determination. The court is permitted to award the additional marital property to the recipient spouse or otherwise adjust the distribution of marital property or marital debt to alleviate the need for maintenance or to reduce the amount and duration of the maintenance awarded.
For marriages under three years in duration, the court may award maintenance when, under the circumstances, the distribution of marital property is insufficient to achieve an equitable result. For marriages in which the combined gross income of both spouses exceeds $240,000, the advisory formula does not apply and the court must base its maintenance determination on “all relevant factors” to arrive at an equitable award.
For all divorce judgments entered after December 31, 2018, the paying spouse may not deduct maintenance payments for tax purposes and the receiving spouse does not report the payments as income.
Modification of Maintenance Award
The court may modify a prior maintenance award when the circumstances of the parties have so substantially and continually changed that the original award has become unfair. A motion to modify maintenance must be filed before the expiration of the current maintenance term.
Security for Maintenance Payments
The court may order security for maintenance payments such as life insurance to ensure the continued payment of maintenance if the payor dies prematurely.
Waiver of Maintenance
Either spouse may waive the right to receive maintenance as long as the waiver is in writing or made orally in court, and is knowing and voluntary. If the party waiving maintenance is not represented by an attorney, the court will not approve an agreement waiving maintenance that does not follow the statutory guidelines unless the unrepresented party indicates he or she is aware of the guidelines.
Termination of Maintenance
Maintenance is usually terminated upon the death of either party or the receiving spouse’s remarriage unless otherwise ordered or agreed in writing.