In any Denver divorce, there is the potential for one spouse or other to be awarded alimony, called “maintenance” under Colorado Revised Statutes. Alimony is designed to provide financial support for a spouse who is unable to meet his or her reasonable financial needs or pay necessary living expenses in light of the parties getting a divorce. The specific statutory standards for alimony are set forth in C.R.S. 14-10-114. Pursuant to statute, there are various, enumerated factors court should look at when determining the issue of alimony. Those can include income of the parties, resources available to them, any disability one spouse might have, whether one party is caring for an extremely young or disabled child, and the standard of living the parties maintained during the marriage. The court might also look at whether the prospective payer spouse will have the ability to meet his or her own reasonable financial needs while also paying alimony.
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 attorneys, 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.