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.
