Maintenance (Alimony) Frequently Asked Questions: Modification and Enforcement
Main Alimony FAQs
- 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.
- 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.
- My wife is not paying me my alimony. What can I do?
Just as with child support, Colorado alimony laws create various remedies and mechanisms for collecting alimony and ensuring that payments are made. With alimony, if payments are not being made, the payee has the option to issue an income assignment for purposes of garnishing the alimony from the payer’s wages. Depending on the circumstances and wording of the initial divorce orders, one can often issue the income assignment without having to file a precursor motion with the court. When the income assignment is filed, payments will be directed to the Family Support Registry, a state-holding tank which will then direct the payments to the payee. In addition to normal wages, maintenance can also be garnished from other types of income, including disability payments or unemployment. Beyond taking steps to collect the current or ongoing alimony, there are also various remedies available to collect the maintenance that has not been paid. This can include covering the past due amount owed to a judgment and garnishing that as well. With the judgment, interest can also be sought at the rate of 8% per year. Arrears can also be added into an income assignment, to be paid out over 24 months, in certain circumstances. With the judgment, wages, bank accounts, and other assets can potentially be seized or drawn from to collect. Of course there are also other remedies available, such as contempt of court. Contempt should generally be the last measure taken, as it can be the most expensive to pursue.
- 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.