What Factors Does a Court Look at When Determining Alimony?

The lay term most people are familiar with tied into spousal support in a divorce is “alimony.” In Colorado divorce cases, the technical term used is “maintenance.” Maintenance can be sought by either spouse in a divorce case, which does not mean that each case is one in which maintenance will be ordered. Before an award of alimony is made by the court, there are various factors the presiding judge must look at. Those factors are set forth in Colorado Revised Statutes 14-10-114. The cornerstone of any maintenance award is need and a court must determine there is a need for spousal support to be ordered.

C.R.S. 14-10-114 sets forth basic factors the court must consider when assessing the issue of spousal maintenance, including:

  • The financial resources of the parties. This can include income, the property allocated to each party, a party’s ability to independently meet his or her financial needs, and child support (if there are children).
  • The time needed for the potential alimony recipient to become self-sufficient, whether through education or training. The court can also factor in that party’s future earning capacity.
  • The standard of living established during the marriage.
  • The length of the marriage.
  • The age and health of the party seeking alimony.
  • The ability of the party from whom alimony is being sought to meet his or her own financial needs while meeting the needs of the recipient.

2014 changes to Colorado Statute had a significant impact on how courts views alimony cases, particularly for families with a combined household income of less than $360,000 per year. With the 2014 changes, the legislature took the formula previously applicable for determinations of temporary alimony, and made it applicable to final divorce outcomes (permanent orders). The formula calculation takes 50 percent of the lower wage earner’s monthly income and subtracts it from 40 percent of the higher wager earner’s monthly income, with an adjustment such that the recipient cannot receive more than 40 percent of the spouses’ combined monthly incomes when alimony and actual earnings for the recipient are added together. The 2014 revisions also require the court to consider the maintenance formula and, if not followed, to state why.

In practice, Colorado divorce lawyers have seen a fundamental shift in how alimony cases are dealt with by the court. Whereas outcomes prior to 2014 were speculative, it is now highly likely that a court will employ the formula. This likelihood has not only made it easier to assess probabilities and outcomes in the courtroom, but has also made settlement of the issue of alimony in divorce cases more common. This is exactly the result the state legislature had hoped for. The predictability applies to both the monthly amount of spousal support and the duration, as statute also contains a time table indicating how long maintenance should be paid based on the length of marriage. The table only goes up to 20 years for length of marriage.

As with time periods prior to 2014, the spouses’ incomes and the length of the marriage are the two most significant factors. Though the other factors set forth in Section 114 still apply, they are much less relevant, except in cases with outlying circumstances. For example, it is rare that a “standard of living during the marriage” argument even arises except in high income cases. Factors which still maintain a semblance of relevance include property (both marital and separate) and need as relates to the potential recipient’s ability to meet his or her reasonable financial needs without support. For example, in a high net worth divorce case in which each party is allocated significant amounts of property, or in cases in which the recipient has his or her own significant, separate assets, some courts may find that despite the formula, that spouse has enough in assets such that he or she just doesn’t need spousal support. Likewise, though the formula may render a result in which spousal support should be paid, the lower income earner may have expenses much lower than individual income such that he or she cannot demonstrate a need for spousal support.

It should be noted that the formula is not mandatory, nor is an award of support. Though maintenance litigation outcomes are much more predictable, it is still advisable to consult with an alimony attorney to assess the specifics of your case to determine what factors may or may not matter to the court. It should also be notes that a change in circumstances tied into some of the factors may also be a basis for seeking a modification of alimony under C.R.S. 14-10-122.

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