By: Stephen J. Plog
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.