One issue that brings spouses stress during a divorce is money. A divorce can create a substantial financial burden for each of the spouses. You’ve likely heard about alimony or spousal support. However, you might wonder, Is alimony always awarded after a divorce?

Whether or not one spouse pays alimony to the other after a divorce depends on several case-specific factors. Below, the Denver alimony attorneys at Plog & Stein P.C. explain when alimony is awarded under Colorado law.

What Is Alimony?

Alimony, spousal support, and spousal maintenance all refer to payments made by one spouse to another when they divorce. Colorado law calls these payments spousal maintenance. (DELETE SPOUSAL-STATUTE ONLY CALLS IT “MAINTANANCE)

Is Alimony Automatic in a Divorce?

Alimony is not automatic when a married couple breaks up. The spouse who wants it must request maintenance from the court. The court will then ultimately determine if alimony is warranted. If so, the judge will then determine the amount and duration of any support payments.

However, rather than having a court determine alimony, the spouses can agree to spousal support payments. The spouses can include the duration, amount, and conditions terminating spousal support payments in the agreement—instead of leaving this decision up to a judge.

Types of Alimony

Whether a court will award alimony depends upon the circumstances of each case and the type of alimony requested. You can petition for temporary alimony to sustain you while the divorce is pending, and you can ask to receive longer-lasting alimony starting after the divorce is finalized.

Temporary Maintenance

Temporary spousal maintenance consists of payments made by one spouse to the other while the divorce proceeding is pending with the court. The court could also include temporary child support payments and require each party to contribute temporarily to the maintenance of the marital property.

Once the divorce is final, the temporary spousal maintenance ends. However, the final divorce decree may include an ongoing spousal maintenance order.

Permanent Maintenance

Permanent spousal maintenance is spousal support that is included in the final divorce decree. This means that it will continue after the divorce is official and the marriage is over.

Permanent spousal support doesn’t necessarily mean that it will last forever. The parties or the court can indicate that it will end after a certain amount of time or upon a particular event happening. For example, the spouses can agree that the spousal maintenance payments will end when the recipient spouse finishes a training program.

Permanent spousal maintenance also typically ends when:

• Either party dies,
• The recipient spouse remarries, or
• The recipient spouse enters into a civil union.

The payor spouse can also ask the court to modify a spousal maintenance order if they experience a significant change in circumstances, such as involuntary job loss, reduction in income, or a long-term disability.

Qualifying for Alimony

A court doesn’t award alimony in every case. Instead, the court employs the following approach for determining alimony in Colorado, as well as looking at a statutory formula for families with a combined adjusted gross income of $240,000 per year, or less.

The court first examines the following factors to determine whether to award spousal support:

• Each spouse’s gross income,
• Each spouse’s share of the marital property,
• The financial resources of each spouse,
• Reasonable financial need established during the marriage, and
• The tax implications of alimony.

The court makes the above findings in writing or orally.

Next, the court will determine whether alimony is fair and equitable based on the following:

• Each spouse’s financial resources, including potential income from separate or marital property;
• The payor spouse’s financial resources and ability to meet their financial obligations;
• The lifestyle established during the marriage;
• Marital property distribution;
• Whether a different share of marital property can alleviate the financial burden;
• Each party’s income and ability to gain education, training, or employment;
• Historical wage discrepancy between the spouses;
• The length of the marriage;
• Temporary maintenance, if any;
• Each spouse’s age and health;
• Contributions to the marriage, including non-economic, such as helping the other spouse achieve educational or professional advancement;
• Tax implications of support payments; and
• Any other factor the court deems relevant.

The court uses the above assessment to decide whether spousal support would be fair and, if so, the amount and duration of any support.

Is alimony always awarded after divorce? No. A court doesn’t always award alimony after a divorce. Whether a court grants spousal maintenance depends entirely on its analysis of the factors above.

Contact Our Denver Alimony Attorneys Today

At Plog & Stein P.C., we understand the financial toll of a divorce. With decades of experience litigating divorce cases, including alimony issues, we’re well-equipped to assess your financial situation under the law. This way, we can fight for your best interests during your divorce. Let us help you secure your future. Contact us today.

If you are facing a divorce or legal separation, you should prepare yourself for significant financial changes. This includes the possibility of receiving or paying alimony.

Whether you hope to receive payment or hope to avoid paying, you might be wondering, “How long do you have to be married to get alimony in Colorado?” In Colorado, we call alimony spousal “maintenance” or support, and our divorce courts have significant discretion when awarding maintenance payments. Our top-rated family law legal team at Plog & Stein, P.C. have decades of experience and is ready to answer your questions about what to expect in a divorce.

Maintenance Eligibility

Unlike child support for parties with minor children, spousal maintenance is not a given part of every divorce decree. Under Colorado law, courts can grant spousal maintenance when one spouse needs support and the other is able to pay. The amount and duration of maintenance payments have to be fair and equitable to both parties, and marital misconduct is not a factor in the determination. While maintenance awards should be “fair” to both parties, the judge’s ideas regarding what is equitable may differ from that of either spouse.

Basically, there is only one type of alimony, but a party can receive temporary alimony while their divorce is pending and post-decree alimony when the divorce is final. You can allow the court to decide the maintenance amount and duration, or you and your spouse can enter a written agreement to decide the amount and duration on your own. If you and your spouse enter a written agreement, you can modify your maintenance, in certain circumstances, unless you have made the agreement “contractual and non-modifiable.”

Calculating Maintenance

The law requires family courts to analyze many factors and make calculations when deciding the amount of support in Colorado divorce cases. Factors that inform the amount and duration of maintenance include:

• The receiving spouse’s actual and potential financial resources and ability to independently meet their own needs;
• The paying spouse’s actual and potential financial resources and ability to meet their needs while paying maintenance;
• The lifestyle during the marriage;
• The duration of the marriage;
• The division of the marital property;
• The income of both parties, their employment, their employability, and their employment options in light of the needs of any unemancipated children of the marriage;
• The earning history of each party;
• The amount and duration of temporary maintenance;
• The age, health, and healthcare needs of each party;
• The potential need to award nominal maintenance to preserve a party’s future claim to maintenance;
• Either party’s significant economic or noneconomic contributions to the marriage and advancement of the other party;
• The taxability and tax deductibility of the maintenance payments; and
• Any other relevant factors.

If the court decides that it can resolve financial inequities by granting a needy party larger portions of the marital estate, the court might deny a spousal maintenance request.

A marriage does not have to last for any particular length of time before a party can receive maintenance. However, the law deems maintenance more appropriate after parties have been married for at least three years.

Maintenance Amounts

While you don’t have to be married for a particular amount of time to receive maintenance in a divorce or separation, the length of your marriage affects the amount you receive. For marriages that lasted at least three years between parties with an annual adjusted gross income of $240,000 or less, the basic guideline formula for calculating maintenance amounts is as follows:

• For federally taxable and deductible maintenance awards – 40% of both parties’ combined monthly adjusted gross income minus the lower income party’s monthly adjusted gross income (down to zero);
• For maintenance awards that are not federally taxable or deductible for parties with a combined monthly adjusted gross income of $10,000 or less – 80% of what the maintenance amount would be if the award was taxable and deductible; and
• For maintenance awards that are not federally taxable or deductible for parties with a combined monthly adjusted gross income of more than $10,000 and up to $20,000 – 75% of what the maintenance amount would be if the award was taxable and deductible.

Spousal maintenance awarded in a divorce after December 31, 2018, is not deductible to the payor spouse or taxable to the payee spouse for federal income tax purposes.

These calculations sound complex because they are. Your best option for safeguarding your financial stability post divorce is to hire an experienced attorney immediately.

Maintenance Duration

For marriages that lasted between three and 20 years, the duration of spousal maintenance payments can last from 11 months (for three-year marriages) all the way up to 10 years (for 20-year marriages). If your marriage lasted for more than 20 years, the court might order a longer duration, potentially even a lifetime of maintenance payments.

We Can Protect You During Divorce Proceedings

We have been in operation since 1999 at Plog & Stein, P.C., and our lawyers have received top ratings from multiple legal organizations. We dedicate our practice to helping clients navigate Colorado’s family law system, and we take the time to make sure we understand and champion each client’s unique needs. This is an incredibly sensitive time in your life—we have what it takes to protect your rights. If you need help, you can call us at 303-781-0322 or contact us online.

By: Jessica A. Saldin

Prior posts have discussed the law and standards regarding the modification of maintenance (alimony). However, a unique area is the modifiability of maintenance for the recipient spouse if they are unemployed or lacking income when their maintenance is about to end. In that situation, they may feel that they need continuing maintenance to support their needs, but the question is does the law allow for a modification of maintenance in those circumstances?

As discussed in prior articles, there are two main questions when looking to modify maintenance: (1) is your maintenance even modifiable and (2) has there been a substantial and continuing change of circumstance such that the maintenance award is unfair. The first is simply a jurisdictional question for the court- if your maintenance is contractual or non-modifiable, the court cannot modify the maintenance amount or term (unless there are specific exceptions to that expressly stated in your agreement). The second is the standard that must be met for maintenance to be modified, under C.R.S. 14-10-122, as to amount or duration.

If you are the recipient spouse seeking to lengthen the term of maintenance and/or to increase the amount, the first question is what is the substantial and continuing change of circumstance that has occurred to justify this request. For example, if you were a stay at home parent during the marriage, and not working outside the home, and received a five (5) year term of maintenance, and are still not employed, that is not a change of circumstance. If, however, you used those five (5) years to go back to school and earn a degree that you believed would increase your income earning capabilities, or you worked on training to improve/refresh your skills, and even with that, and extensive employment search efforts, were unable to find employment, that could be a change of circumstances. For example, you could make the argument that at the time of the divorce you believed five years would be sufficient time to gain sufficient employment to be able to support your own reasonable needs but that, due to unforeseen circumstances, you are still unable to support your own reasonable needs. There is no guarantee, though, that such an argument would be sufficient to get your maintenance term extended. Modifications are subject to the reviewing judge’s discretion.

The factor in a maintenance modification proceeding that is often the most difficult to prove is the last factor- that the change has made the maintenance award “unfair.” You may be able to prove that there was a substantial and continuing change, but that is still not sufficient to get a change of maintenance. Before maintenance can be modified you have to prove that the change makes the maintenance award unfair.

As the recipient party, in order to put yourself in the best position to seek an award of more maintenance or a longer term, if needed in the future, you should be spending the maintenance term doing everything you can to maximize your earning potential (i.e., going back to school, taking classes to update/improve your training, job hunting, etc.). We sometimes see cases where the recipient spouse has spent the maintenance term continuing to be a stay-at-home parent and using the maintenance to cover their living expenses during that time period. If, as the recipient spouse, that is what you believe is best for the kids and have the means to do so, there is nothing wrong in a general sense with this being how you decide to spend your maintenance term. However, it could make it almost impossible to get a modification for more, or a longer term, of maintenance. If, for example, you were still a stay at home parent at the time the maintenance term is set to expire, and you want to seek a longer term of maintenance since you still do not have the income to support your reasonable needs, not only is it difficult to point to a substantial and continuing change of circumstance, it is also difficult to meet the unfairness factor. The divorce court would very likely question why you did not spend the maintenance term maximizing your earning potential in anticipation of the end of maintenance.

Therefore, if you are a recipient spouse of maintenance, while it may seem that keeping your income low may be the best way to seek more maintenance (either in the form of a larger amount or a longer term of maintenance), in actuality, taking any and all steps you can to maximize your earning potential is actually the best use of the maintenance term.

By: Stephen J. Plog

Alimony, known as spousal maintenance in Colorado, is a payment one spouse may be ordered t0 make to the other during or after a divorce. The purpose of alimony is to ensure each spouse has the ability to meet their basic needs post-divorce. The person making alimony payments will be the higher earner. He or she will pay alimony to the lower-earning party to ensure financial stability after the split. Not every divorce case involves an alimony award. If you do have to pay alimony, find out what to expect if you lose your job.

Are You Required to Pay Alimony While Unemployed?

In the times of COVID-19 and great economic upset, employment is not a guarantee. Millions of US citizens have filed for unemployment since the start of the pandemic. In Colorado, becoming unemployed does not automatically release you from an alimony obligation. The courts will still expect you to make your alimony payments in full and on time. Presuming your unemployment continues, you may have a basis to seek a modification of your alimony obligation. However, if you make as much in unemployment benefits as you did in wages, your alimony obligation may not change at all.

Can You Adjust Alimony Payments?

If your unemployment benefits do not match your previous income, or if you lose your job and do not qualify for federal unemployment benefits, you may need to request an official modification of spousal maintenance. You will have to continue paying the full amount you owe your ex-spouse in alimony until the courts grant your modification request. According to Colorado Revised Statute 14-10-122, you may only qualify for alimony order modification if you have encountered a substantial and continuing change in your income that makes the current alimony obligation unfair.

It will be up to you or your divorce attorney in Denver to prove to a judge in Colorado that your change in circumstance leaves your current orders to be unfair. What is fair or unfair is up to the judge’s discretion based on the facts of your case. A judge will assess your current situation to see if the spousal maintenance order is fair. It is usually wise to wait a month or two after you lose your job to request a modification. That way, your losses will qualify as both substantial and continuing.

State authorizes a modification to be applied retroactively to the date a motion is filed. Thus, while you will still have to continue paying alimony while your case is underway, you can receive some of these funds back if a judge rules in your favor. For a judge to agree that you qualify for an alimony adjustment, you or your lawyer will have to prove that you have made a true and reasonable effort to find similar, gainful employment. You cannot accept your loss of a job without trying to find another, similar job if you wish to stop or reduce your alimony payments.

Consequences of Not Paying Alimony

Until a judge grants your request to modify alimony, you will lawfully have to continue making your full payments. You cannot stop paying alimony as soon as you become unemployed. You will only have this right after a judge passes your motion to modify. If you fail to make a spousal maintenance payment before the approval of your request, you could be held in contempt of court.

If you face contempt of court as a result of your non-payment, your spouse will be tasked with proving that you had the ability to follow the court orders, yet failed to do so. As such, job loss alone may not be enough to defend against a contempt of court filing. If found in contempt, you could be faced with having to pay what is owed, attorney fees, a fine, and potentially jail. The specific consequences for not paying alimony ultimately depends on the judge and how he or she applies the law.

It is important to hire an attorney to help you submit an official request for alimony modification as soon as you lose your job in Colorado. A lawyer can help you obtain relief from an alimony obligation without running the risk of being held in contempt of court.

Temporary Alimony

Colorado Revised Statute 14-10-114 is the state’s spousal maintenance law. It states that when two spouses’ lives get so closely intertwined in marriage, it can be impossible to later separate the contributions of each. Lawmakers often find it necessary to provide temporary spousal maintenance during the period of adjustment before a divorce, when the lower-earning spouse is first learning how to become financially independent. Temporary alimony has a clear end date when awarded by a judge: the completion of the divorce.

When deciding on an appropriate amount to award in temporary alimony, a judge will use the equation in Colorado’s spousal maintenance statute. If the couple’s combined annual gross income is $75,000 or less, the amount of alimony will equal 40% of the higher-earning party’s monthly gross income, minus 50% of the lower-earning spouse’s income. If the combined income is greater than $75,000, alimony can come in any amount the judge deems just, taking into account factors such as the financial resources of the spouse seeking alimony, standards of living during the marriage and the duration of the marriage.

Temporary alimony generally lasts until the date the courts finalize the divorce. It is a type of support awarded to get a spouse through the divorce process without an excessive amount of financial duress. Either spouse has the right to contest the amount of alimony a judge awards. The spouse receiving alimony may also request to make a temporary support order permanent after the divorce. A Denver alimony lawyer can assist you with any changes or requests in your spousal support agreement.

Permanent Alimony

Permanent alimony does not necessarily mean one spouse has to pay the other indefinitely. It means the spouse must continue paying alimony even after the finalization of the divorce, for a period of time a judge deems appropriate. Permanent or post-divorce spousal maintenance is rehabilitative, meant to help the lower-earning spouse until he or she can acquire the education, experience or training necessary to financially support him or herself. A judge may make an alimony order permanent in the true sense of the word in cases involving long-term marriages (20 years or longer).

When determining how long a permanent alimony order will last, a judge in Colorado can consider several factors. The first is the standard of living the spouse enjoyed while married. The second is any issue that could interfere with the recipient’s employability, such as a physical disability or mental health problem. The third is the recipient’s age. The fourth is the ability of the paying spouse to fulfill an alimony order while still meeting his or her own needs. Ultimately, it is up to a judge to decide whether one spouse is in need of alimony, and if so, the duration of the order.

Modifying an Alimony Order

Colorado law may allow either spouse to request a modification after a judge finalizes the maintenance order, but only in certain situations. If a couple agrees to alimony as part of a settlement and state that it is nonmodifiable, neither will be able to modify the order in the future. Court-ordered maintenance, however, is modifiable if a spouse’s circumstances significantly change and will stay that way for the foreseeable future. In this situation, either spouse can petition the courts to modify a maintenance order. Most alimony awards in Colorado will end if the receiving spouse remarries.

By: Michelle L. Searcy

Often, the longer the marriage, the longer the duration of the obligation to pay maintenance (alimony). As a result, one party in a divorce may still have many years of support to pay, even as he or she approaches retirement age. Unless that maintenance obligation is contractual and non-modifiable, the person owing a duty of support may have a basis to seek modification of the term and amount of maintenance. Since contractual, non-modifiable maintenance requires the parties to agree to that aspect of maintenance, any orders that do not clearly state this condition are modifiable.

Modifying maintenance places a heavy burden on the party seeking to modify to prove that a substantial and continuing change of circumstances has made the previous order unfair. If you have reached full retirement age and are, in fact, retiring in a manner where your retirement income will not be sufficient to pay maintenance and your living expenses, your chances of modifying or terminating maintenance are good. If you are retirement age, but still continuing to work full-time, you may find it more difficult to change maintenance.

Some professions allow for early retirement. In Colorado, as relates to retirement, a person owing a maintenance obligation shall not be considered underemployed if: (1) the decision was made in good faith without a motivation to decrease or eliminate maintenance, and (2) the decision was objectively reasonable based on the particular circumstances of the party seeking to change the obligation. These factors include, the person’s age, health and the usual practice in the industry of the obligor. This standard was established in the 2008 Colorado Court of Appeals case, In re Marriage of Swing, 194 P.3d 498. The standard also applies to a recipient of maintenance who takes an early retirement and seeks to increase maintenance. Swing established that modification cannot be denied solely on the basis that the otherwise objectively reasonable decision disadvantages the person receiving maintenance.

If your retirement plan includes drawing from a retirement account that was divided as part of the divorce, you will be able to argue that your former spouse will have his or her share to make up the difference in support. However, if your former spouse is not at least 59 and a half years old, any withdrawals from a retirement account will incur a penalty. Plus, a party who receives alimony cannot be expected to expend their marital property for financial support.

If the duration of your marriage was at least ten years, your former spouse may be able to collect social security income based on your earning record. Therefore, a spouse who earned far less or spent years taking care of the home and family has the opportunity to collect 50% of your social security without reducing the benefit you collect. However, your former spouse must be 62 years of age to do so and may collect on your earning record even if you have not yet applied for social security benefits. Furthermore, your former spouse cannot collect on your earnings record if he or she worked for local or state government in a position where, instead of contributing to social security, he or she had a retirement pension through said government employment.

In all, Colorado does respect your reasonable retirement plans and may well modify maintenance on this basis. However, if you are retiring or retired, but still have a minor child to care for, you should expect to continue paying child support, although the court may modify it on the basis of your change in income. If you are trying to retire early, an obligation to support a minor child could impact the court’s analysis of whether your retirement decision is objectively reasonable. A minor child could receive a benefit on the basis of the child’s parent’s or step-parent’s death or disability, but not based on a parent’s retirement. Hopefully, this blog post provides an outline of considerations if you are thinking of retiring but still have a maintenance obligation. I highly encourage all readers to consult with a divorce attorney prior to making significant decisions related to alimony and retirement.

In a divorce case, a higher income earning spouse may be “on the hook” to pay maintenance (alimony) and child support. There are divorces, however, in which this higher-income earning spouse is in his or her sixties and nearing retirement age. Some dads have children when they are in their fifties, or later. In other cases, a divorcing couple, after a longer-term marriage, splits up after their children are adults, thereby leaving spousal maintenance as the sole support issue to be determined. The question arises in these cases as to whether that higher-income earning spouse is going to be able to retire when reaching retirement age or whether the law requires that spouse to keep the income rolling in regardless of that his or her age. Prior to changes in statute, there was already case law supporting the notion that there was a valid correlation between retirement and modifying support obligations. Statute now codifies such notions.

The Colorado Legislature has addressed this issue in C.R.S. 14-10-122, which states:

“…(b) A payor spouse whose income is reduced or terminated due to his or her retirement after reaching full retirement age is entitled to a rebuttable presumption that the retirement is in good faith.(c) For purposes of this subsection (2), “full retirement age” means the payor’s usual or ordinary retirement age when he or she would be eligible for full United States social security benefits, regardless of whether he or she is ineligible for social security benefits for some reason other than attaining full retirement age. “Full retirement age” shall not mean “early retirement age” if early retirement is available to the payor spouse, nor shall it mean “maximum benefit retirement age” if additional benefits are available as a result of delayed retirement.”

“Ordinary retirement age” in this statute is generally going to be age 65. In a typical case, when calculating spousal or child support, a party who quits their job for no good faith reason is considered voluntarily unemployed and the income abandoned by that spouse is still imputed to them as if it is still being earned. However, C.R.S. 14-10-122 creates an exception in recognizing that quitting employment at the age of 65 will be presumed to be in good faith, and thus preventing income imputation.

Regardless of the potential statutory pass a spouse might get at retirement, statute does not provide relief when a retirement age spouse keeps working. Turning 65 is not a “magic” age at which the court ignores that a spouse is actually continuing to earn the same income. In other words, the higher income earning spouse has to actually retire. Furthermore, the statute creates a “rebuttable presumption” that retirement at the age of 65 is in good faith. This means that the other spouse still has room to argue against allowing the first spouse to reduce his or her income, despite them reaching retirement age. One could envision a situation where a higher-income earning spouse has an easily attainable bonus or stock maturity if employment continues past the age of 65, but the higher income earning spouse abandons those incentives just to avoid sharing those easily attainable incentives with an ex-spouse via a support order. Thus, just reaching retirement age is not an absolute basis to justify reducing income and support.

Additionally, in some cases, the lower-income earning spouse may have their own respectably compensated career, but is still entitled to support under the applicable statutes. In such cases, the higher income earning spouse may think, “If I retire, my spouse will earn more money than me, and I will get support!” In the opinion of this author, the law does not permit this. If the higher income earning spouse is retiring without experiencing a disability or being forced out of his/her job, the court can take those circumstances into account and not require the younger spouse to essentially fund the older spouse’s retirement. Further, the court can look to the assets/retirement resources of the retiring spouse to determine the appropriate support orders. Draws from retirement accounts or pensions count as income under the support statutes, so to the extent a spouse replaces wage income with retirement draws and social security payments, the higher income earning spouse may not be reducing his/her income by enough of an amount to change the support calculus.

It should be noted that retirement as a divorce-related subject does not just tie into modifications of alimony or child support. Rather, retirement, as relates to income and assets, can also become a divorce issue while the initial case is pending. If retirement is an issue arising in your divorce case, I advise speaking to an experienced family law attorney to understand your rights and options, regardless of which side of the equation you are on.

When is Child Support Terminated or Modified in Colorado?

Starting August 8, 2018, there will some statutory changes being made to the Colorado Uniform Dissolution of Marriage Act (the main statute/law that governs Colorado divorce and custody cases). As these changes may have major impacts on your divorce or custody case, it is important to know what they are. A few of the statutes are undergoing minor word changes, which are not being discussed in this article. The major changes, which will be the primary focus of this article, affect the statutes governing spousal maintenance and child support.

C.R.S. 14-10-114 is the statute that governs maintenance (often called spousal support or alimony). As discussed in a prior blog post, the federal tax code is changing in 2019, with an impact on how maintenance payments are treated for tax purposes. It used to be that a payor’s maintenance payments were tax deductible to the payor and a recipient’s maintenance payments had to be claimed on the recipient’s taxes as income. Starting in 2019, the recipient will not have to declare maintenance payments as income; however, the paying party will not get a deduction for maintenance paid. As mentioned in the prior post, such was anticipated to have an effect on Colorado’s maintenance law because the formula was created with the understanding that maintenance would be tax deductible and taxable, respectively. As anticipated, the Colorado legislature has made changes to Colorado’s maintenance law to account for these federal tax changes.

The main change affects the maintenance formula in Colorado. The first change to the maintenance formula has nothing to do with the tax change. It appears to be a clarifying change that was long overdue. The maintenance formula used to be written with a complex formula indicating that the guideline maintenance amount would be forty percent of the higher income party’s monthly adjusted gross income minus fifty percent of the lower income party’s monthly adjusted gross income. However, the statute then would go on to clarify that, when added to the receiving party’s gross income, the guideline amount was not to result in the recipient receiving more than forty percent of the parties’ combined monthly adjusted gross income. That second part was known as the maintenance “cap.” In practicality, though, the first, fairly convoluted formula was unnecessary because the cap always controlled the guideline amount of maintenance. Therefore, beginning August 8, 2018, the statute has been changed to do away with the complex formula and simply calculates maintenance based on this “cap” formula.

If the maintenance award is still tax deductible to the payor and taxable to the recipient, that formula is the end of the calculations for the purposes of determining the guideline amount. If, however, the maintenance award is not tax deductible to the payor nor taxable to the recipient (please refer to the prior blog post to determine when this would be the case), the August 2018 statutory changes take the formula one step further. In that case, if the parties’ combined monthly adjusted gross incomes are $10,000 or less, the recipient spouse would receive 80% of the amount calculated using the cap formula, above. If the parties’ combined monthly gross incomes are $10,000-$20,000, the recipient spouse would receive 75% of the amount calculated using the cap formula, above. This was likely changed to try to factor the amount the recipient spouse would have paid for taxes, and the amount the payor spouse would have received as a credit from the deduction, and attempts to balance such as part of the formula. The formula is still simply a guideline amount, though, so some of the other statutory changes were to add the taxability of the maintenance payment into the factors the court can consider when determining what a fair and equitable amount of maintenance would be.

Another change coming in August 2018 changes both the maintenance statute and the child support statute (C.R.S. 14-10-115) in the way they define incomes for the calculation of the maintenance and child support amounts. Under the old statute, if a party was paying a pre-existing maintenance/alimony amount, that was deducted from that party’s income before calculating the maintenance or child support guideline amounts. That is still in place. However, it has been amended such that if the paying party’s pre-existing maintenance payments are not tax deductible, the amount paid by the party is multiplied by 1.25 and that resulting amount is what is deducted from the party’s income before calculating maintenance or child support. Similarly, if a party was receiving maintenance from a prior order/case, that amount was included in the calculation of that party’s income when calculating maintenance and/or child support. That also still stands, but a similar caveat has been added in that if that person’s maintenance received is not taxable, you take the amount of maintenance received by that person, multiple such by 1.25 and add the resulting number to the party’s income before calculating the maintenance and/or child support guideline amount in the current case.

Obviously, the goal from these statutory changes is to try to balance the effect the federal tax changes had on parties paying and receiving maintenance. There is no perfect formula as each person’s overall tax implications are different based on a variety of factors, but the changes are a way to ensure that one party does not receive a windfall from the tax changes, while the other suffers. As we see how these guideline changes actually impact maintenance and child support orders going forward, there may be a need for further statutory changes in the future.

In my next posting, I will give some examples of the new statutes in action, with the intent of adding clarity in a real-life, mathematical sense.

In Part 1 of this post, I gave a basic introduction into the issue of alimony, called “maintenance” under Colorado statute, reasons why either party might seek to modify maintenance orders, and the legal standard for modification of of alimony set forth in Colorado Revised Statutes 14-10-122.

As set forth in Part 1, the general standard to modify alimony is that there has been a substantial and continuing change in circumstances which renders the current orders for spousal support “unfair.” When looking at modifying Colorado child support, the “substantial” and “continuing” standard is also applicable, with “substantial” actually being numerically quantified as being a ten (10) percent or more change to the monthly child support figure. When dealing with a modification of alimony, the ten percent threshold is not applicable. In fact there is no numerical percentage applied. Whether a ten percent or more change is suggested by the party seeking to modify their alimony orders, they still have the burden of proving, or convincing the court that the modification they are seeking is needed because the current orders are “unfair.” Thus, the standard and hurdles are greater when modifying maintenance. Of course, the analysis begs the question of what does “unfair” mean?

As with many aspects of Colorado statute, the use of the term “unfair” leaves litigants, and Denver alimony attorneys, in the position of dealing with a somewhat vague, undefined standard. Furthermore, when vague, undefined terms are used, the logical flow of the analysis is that the judge or magistrate hearing the modification case is vested with the discretion to subjectively determining what he or she believes to be “unfair” based on the facts and circumstances (the evidence) as he or she sees it. Without a specific definition or guide post, attorneys should take heed when looking into filing a motion to modify maintenance to make sure that the facts at hand are likely enough to persuade the trier of fact, the court. Past versions of statute, and supporting case law, used the standard of “unconscionable,” which simplistically could be summed up as being grossly unfair in light of the circumstances such that it would be illogical or unreasonable to continue the current alimony orders. Though “unconscionable” is no longer the standard, it is advisable to gravitate towards proving such when pleading a case for modification of alimony.

In practice, for the payer, your changed circumstances should be significant. A slight pay reduction on your end or a slight pay increase on the part of the recipient is not likely going to be enough to persuade a court. A significant pay reduction, such as fifty percent might be enough. The outright loss of a job, coupled with months of fruitless looking for replacement employment would certainly be a more compelling basis for modification. With significantly reduced income, or no income at all, it would factually be “unfair” for the payer to continue in his or her obligation. Logically, the payee’s circumstances will also need to be looked at. A payor making $360,000 per year, while the payee makes minimum wage, may not have the greatest argument if his or her income in reduced to $180,000. Furthermore, an increase in the payee’s income might be a basis for a modification. Again, a slight increase in the payee’s wages, or even a doubling of that income, may not be enough. A good guide post would be assessing when the payee’s income starts approaching that of the payer, or even when the payee’s income, coupled with the current alimony, starts pushing or exceeding fifty percent of the combined, aggregate monthly income of the two parties. With no set rule, you and your attorney will be in the position of having to do some educated guessing as to what “unfair” means and should be sensitive to the notion that the court will likely be looking for a significant change in circumstances. Proving what is fair or not sometimes entails more than just an assessment of income and may include a detailed analysis of expenses, debt, and assets of the parties.

In any maintenance analysis, including tied into modifications, income is not going to be the only factor the court looks at. As set forth in C.R.S. 14-10-114, the reasonable financial needs of each party and the ability to meet them are also going to come into play. Perhaps the payee’s necessary expenses have gone down since the divorce decree entered and/or they are able to better meet those needs on their own. The payer’s financial needs will also need to be addressed, with the presumption that the loss of income, employment, or even the ability to work prevents him or her from meeting those needs. Assets can also be looked at a part of the analysis. As such, you should be prepared to demonstrate the validity of your expenses, while also being prepared to demonstrate any inaccuracies or padding of the other parties.

Just as with child support modifications, a modification of alimony can be retroactive to the date of the filing of a motion. This matters in that the time between filing and the time of the actual hearing on the issues can be several months down the road. Though previously ordered payments will continue until hearing, statute authorizes the court to award either excess payment or the underpayments which occurred during this time frame to the respective party. Retroactive modification is not mandatory if the court finds application of the new amount would create an undue hardship on the other party. However, applying the new monthly amount retroactively to the date of the filling of a motion to modify alimony is the norm. The desire for retroactivity of your motion to modify maintenance should not lead you to filing your motion too soon. When pondering filing quickly so as to preserve any retroactivity, remember the change giving rise to the filing of your motion needs to be “continuing.” For something like a disability impacting income and ability to work, there is no need to wait to file. However, with job loss, the filing party, particularly the payer, would be wise to wait a month or two before filing, absent special circumstances.

Having found more to say than can be fit into two postings, I will finish up this theme with a Part 3, which will focus specifically on filing, the court steps one can expect, including disclosure and discovery, and a little bit of strategy. Modification of alimony is serious for both parties involved and a little insight can go along way in helping understand the process you and your Denver alimony attorney will go through.

Starting in 2014, statute was amended with the Colorado legislature including a formula for calculating alimony for couples making under a combined $360,000 per year adjusted gross income. A table setting forth duration based on number of months married was also input into the statute. Though the formula and duration chart are not mandatory, courts are encouraged to follow them and if they do not, they should set forth the reason(s) why. Of course there are families making more than a combined $360,000 per year and courts are still vested with discretion regarding the issue, though it is much less gray and much more formulaic than in years past. Of all the factors statute indicates a court should look at, income is the most important. A support order for alimony will ultimately be entered, which will set forth the monthly amount (or other payment terms) and duration of the maintenance. In most cases, after that support order is entered, support is paid pursuant to the terms and the parties move on with their lives. However, that’s not the end of the story. As with any situation in life, things can change. Statute acknowledges this by affording people the opportunity to modify their alimony orders in certain situations, both as to amount and duration.

As Denver divorce lawyers, it’s not uncommon for us to get calls from people seeking to change their alimony orders. When presented with a modification of alimony situation, we look to C.R.S. 14-10-122 for the standard. Specifically, C.R.S. 14-10-122 indicates that an order for maintenance may be modified if there is a substantial and continuing change which makes the current order unfair, but what does this mean? When modifying child support the standard, also set for in C.R.S. 14-10-122 is clear. For child support, there must be a change in circumstances which impacts the monthly child support amount by 10% or more, whether up or down. When seeking to modify maintenance there is no clear, bright-line rule and no specific percentage threshold.

Common post-divorce circumstances warranting a modification of maintenance might be the payer spouse losing his or her job, whether through lay off, termination, or otherwise. Without the same income, it would certainly be unfair to continue the current support order. Likewise, a payer spouse might seek to modify maintenance if he or she can establish that the alimony recipient is making significantly more money than he or she was making at the time the most recent support order was entered. An injury or disability might also be a basis. Modifications are not something afforded solely to the payer, but rather, payees might also file a motion to modify if they become unemployed, or the payor has started making significantly more money, or they have been injured or disabled. Each case is going to be different and any of the changes set forth above would certainly be “substantial.” However, the next step of the analysis is whether the change is also “continuing.”

When dealing with the issue of “continuing,” the first question the attorney is going to ask is how long ago the job separation or change occurred. If a party just recently lost his or her job, though substantial, they will also need to be able to allege the change is continuing. As such, it’s advisable to wait a month or two before filing anything. Assuming the party who lost his or her job is able to work, it is advisable to start looking for alternate employment immediately and to document all efforts to find a new, similar job. Efforts should continue even after a motion is filed. If a new, similar job is found, great. If not, then proceeding with the motion will likely be the best route to follow.

In Part 2 of this post, I will focus on other aspects of modifying alimony, including “fair,” retroactivity, and the court steps one can expect.