In a Colorado divorce, reasonable financial needs do matter in a determination of alimony. Reasonable needs matter for both parties, though not to the same degree as previously stated in statute. Much has been made of the new 2014 alimony (properly termed “maintenance”) formula, with individuals often jumping right to the formula without so much as a review of the initial factors in determining maintenance. This can include both family law attorneys and judges alike.
The first part of the statute regarding maintenance, C.R.S. 10-14-114, still includes a review of whether an individual requires maintenance to meet their reasonable needs. The Court must first make this determination of such, which requires a review of whether an individual has sufficient income to cover their reasonable needs or has enough property, either marital or separate, to meet these needs.
A Denver family law judge is first going to assess need by looking at a party’s financial disclosures, which includes not only providing various financial documents, but also an affidavit listing income, assets, debt, and expenses, called a “sworn financial statement.” When completing your sworn financial statement, it is important to list out your monthly income and expenses in as much of a detailed and accurate manner as possible. It is important that you do not attempt to inflate your expenses, as this is often noticed by the other party or the Court and may damage your credibility. If there is an expense that you believe to be reasonable, be ready to explain why it is a necessary expense for you.
Once the court has reviewed your reasonable and necessary needs, the judge will move on to the other aspects of the maintenance determination. Initially, your income and/or income potential will be assessed. Second, your property will be reviewed. This does not mean that simply because you are receiving significant marital property that your request for alimony will be denied. The court will review what property each party is receiving and make a determination. The court generally will not require you to access your property to pay your monthly needs while the other party is allowed to save and use their marital property for items such as retirement. In fact, there is case law supporting the notion that a party is not required to burn through their part of the marital estate before being eligible to receive alimony.
After the 2014 changes to statute and the implementation of the non-mandatory, though generally followed formula, an argument can be raised that “financial need” no longer matters when determining Colorado alimony. However, statute still prefaces a maintenance analysis with the threshold assessment of that need. Even when a court goes right to calculating maintenance under the formula, it should still review the potential paying party’s finances and monthly expenses as well. The judge should be reviewing whether he or she believes the monthly alimony payment is fair. The judge certainly has the discretion to make this decision as to maintenance and whether to strictly apply the formula. Therefore, it is important, once again, that financial statements be accurate and detailed.
It is also important for Colorado family law attorneys to be ready to argue the needs of the parties. It is possible to request a deviation from the amount determined by the maintenance formula. One must be prepared to detail why a deviation is necessary and to provide documentation of supporting arguments as to the fairness of formula deviation. It is vital to make a strong showing, as deviations from the formula are not easily given by the court, particularly when deviation is the easier path for any judge.
It is recommended that you speak to a Denver divorce lawyer at Plog & Stein, P.C. who can assess your facts mapped up with the entire alimony statute, give you an accurate estimate for maintenance, and guide you on all of the possibilities that could occur in a divorce case with alimony issues.
