Frequently Asked Colorado Alimony Questions Part 2
- Does my overtime count as income for alimony purposes?
When determining income for alimony purposes, C.R.S. 14-10-114 defers to C.R.S. 14-10-115, the Colorado child support statute, for the definition of income. C.R.S. 14-10-115 indicates that for child support calculation purposes, voluntary overtime does not count as income. If the overtime is mandatory, it does. The situation differs when dealing with alimony. In an alimony situation, a court can look at voluntary overtime as an economic circumstance and factor it in, but will generally only do so if there is a history or pattern of the overtime being an integral and regular part of the party’s earnings. There is no black and white rule and each judge has a modicum of discretion in terms of how he or she will factor in the overtime, if at all, when determining alimony.
- Can I garnish alimony from my wife’s pay?
As with child support, alimony can be garnished, or withheld from the payer’s income. Most courts will authorize the entry of a garnishment, more properly called an “income assignment,” for alimony purposes if either party asks for such. Additionally, as with a child support garnishment, alimony can be paid directly to the recipient, or through the Family Support Registry.
- My husband’s income has doubled since our divorce was done. Can I get my alimony raised?
To modify alimony, a person must show that there has been a change in circumstances so substantial and continuing so as to make the prior alimony orders unfair. Therefore, there is more that goes into the analysis than just the change in income. A court will also look at the recipient’s income, as well as both parties’ financial circumstances. The second part of the analysis regarding the question ties into the nature of the alimony. If the alimony orders are entered with the court retaining jurisdiction over the issue of alimony for modification purposes, then the alimony may be modifiable. However, if the alimony orders entered are “contractual” and “non-modifiable,” with the parties agreeing that the court is divested of the ability to modify, then the court has no jurisdiction to modify the alimony and the award will be treated as a binding contract. In these uncertain economic times, with job loss and layoffs being more common place, it has become much less common for us to recommend that our clients who pay alimony enter into a contractual situation.
- How does alimony affect child support?
Pursuant to the Colorado child support statute, alimony counts as income for child support purposes to the child support recipient. Conversely, alimony paid by the party also paying child support is deducted from his or her income. Thus, the more alimony a person pays, the lower the amount of child support he or she owes. As Denver child support attorneys, it is not uncommon for us to see modifications of child support centering on the termination of alimony. Once alimony stops, the income of the child support recipient goes down. For the payer, it goes up. If the change in incomes triggers a 10% or more change in the bottom line in the child support calculation, then the child support figure becomes modifiable. Alimony payed or received counts in separate child support or custody cases as well, not just in the case in which the alimony is ordered.
- Do I still have to pay my alimony if I lose my job?
Yes. In any Colorado divorce case, the court expects that its orders will be followed. Orders regarding alimony are no different. When the court enters an order for alimony, perhaps for $1000 per month, the expectation is that the amount will be paid unless a change is either agreed upon between the parties or granted by the court. When the payer of alimony loses his or her job, there are options available pursuant to C.R.S. 14-10-122 related to modifying the maintenance orders. Specifically, the standard for modifying maintenance is that a substantial and continuing change has occurred which makes the current maintenance orders unfair. The standard of fairness is subjective to each judge. When the payer becomes unemployed, it is often advisable to wait a month or two before filing that motion to modify. Though the job loss is certainly “substantial,” one must also show it is “continuing.” As such, waiting a little while can help prevent a response to the modification motion which includes a motion to dismiss.
Presuming the unemployed payer can show valid efforts have been made to gain new, similar employment, he or she should be entitled to an adjustment or termination of maintenance based on the same circumstances. Going from an income amount warranting an alimony award of $1000 per month to $0 per month should be viewed as a circumstance making the prior order “unfair.” A motion to modify is retroactive to the date it is filed. As such, though payments will technically need to be made while that motion is pending, the payer should be able to recoup some of the funds paid down the road. Unfortunately, there is no instant relief. If someone is truly just unable to pay when becoming unemployed, and can demonstrate such, the likelihood of being found in contempt of court if payments are not made goes down. Nonetheless, it is advisable to follow orders when able. Nothing is automatic in the court system and job loss does not automatically eliminate the duty to pay alimony.
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