The Gasper Law Group, PLLC
In Colorado divorce cases the judge or magistrate will determine whether alimony (which is called “spousal maintenance” in Colorado) should be awarded to you or your spouse, assuming it was requested by a party. It is important for you to understand the impact that alimony may potentially have in your case.
Alimony is intended to assist a spouse who lacks sufficient property to provide for his/her reasonable needs, and is “unable to support himself/herself through employment according to the Court. Alimony must be specifically requested by a party before the Court will award it. For example, if no request for alimony is made at the final hearing, then the Court will ensure that the parties understand that once waived, the right to receive alimony may never again be reasserted.
Generally, the longer the marriage, the more likely the court is to award alimony in your case. However, it is important to remember that there are always exceptions, every case is different, and there are a number of factors to consider; this is not necessarily a given. Your case may involve unique circumstances. Though there is no set standard, spouses married just a couple of years do not often receive maintenance upon divorce in Colorado. If the marriage was long enough (typically at least 20-25 years or more), the Colorado divorce judge may even award one spouse lifetime alimony, depending on the other factors involved such as the age of the parties, employment history, education, and the ability of each to work outside the home. Maintenance in Colorado is terminated by the death of either party, or the remarriage of the spouse receiving alimony. Cohabitation with a new significant other does not terminate the maintenance obligation under Colorado law.
WHAT IF MY SPOUSE REQUESTS THE JUDGE TO ORDER ALIMONY WHILE THE DIVORCE CASE IS PENDING?
This is called “temporary spousal maintenance.” Your spouse is not required to request this, however, and it will not be addressed by the Court unless someone requests that the Court enter orders addressing the issue. There is a presumed level of temporary alimony in Colorado, in cases where a couple’s combined gross annual income is equal to or less than $75,000. If you and your spouse’s gross yearly incomes added together equal $75,000 per year or less, then it is likely that at a temporary orders hearing the Colorado family law magistrate will apply a mandatory formula and award maintenance equal to 40% of the higher income earner’s gross monthly income minus 50% of the lower income earner’s gross monthly income. This statutory formula, which can be draconian, is required to be applied by the judges and magistrates, who cannot exercise discretion to change what they have been mandated to do.
Under those circumstances, this Colorado alimony formula applies regardless of the length of the marriage. C.R.S. 14-10- 114(4) requires that maintenance be determined “without regard to marital misconduct.” It does not matter if a spouse committed adultery or other moral or wrongdoing; the Court generally must order a maintenance amount based on the above formula (on a temporary basis only.) In other words, if your spouse cheated on you and ended the marriage, it will be irrelevant to the Court regarding maintenance. Your attorney cannot present an argument to the court that, since your wife cheated on you with five different men and is now living with her new boyfriend, you should somehow not have to pay spousal support to her because of that moral wrongdoing. Another painful example: even if you were only married for a few months, it does not prevent the other spouse from requesting temporary maintenance pursuant to the formula, even though the spouse will almost certainly not get any maintenance when the divorce is final.
Example: Parties have no children together. Peter earns $4000 per month, and Trixie earns $1500 per month and is living and being supported by her new boyfriend. Peter’s presumptive temporary maintenance payment will be $850 ($1600 – $750) per month, until the final orders hearing or further agreement of the parties.
In situations where both of your combined gross annual incomes exceed $75,000, this formula does not automatically apply for temporary alimony in Colorado. Instead, the courts are supposed to utilize various factors your attorney can help you understand. Note that this creates less predictability – while some Colorado divorce magistrates may use the 40% minus 50% formula as a starting point, other magistrates will disregard it altogether. That being said, when the parties’ combined gross monthly incomes are more than $75,000 the magistrates will still use the formula as a guideline or starting point for determining temporary maintenance, assuming the threshold requirements are met. The magistrate will be particularly interested in the parties’ respective financial situations – and will scrutinize both of your sworn financial statements to see what incomes and expenses look like, and what shortfall may exist. In other words, the magistrate or judge will balance one spouse’s true need vs. the other’s ability to pay. Your Sworn Financial Statement is extremely important when payment of maintenance is the major issue in the case. Our experienced attorneys can help to make sure you can reasonably and cogently explain every single dollar listed in that document if you were to be asked questions by a judge about it.
HOW MUCH AM I GOING TO HAVE TO PAY AND FOR HOW LONG AFTER I AM DIVORCED?
As you might have guessed, there is no quick and easy answer to this question. Absent agreement with your spouse on the issue, the answer to this question may only be reached after hours of negotiation, through the mediation process, or at your final hearing, as this is likely to be the biggest issue in your case if there are no issues regarding children.
This is a highly discretionary area for judges, which is a big reason why there is unfortunately so much litigation between couples even when everything else can be resolved and why you need an experienced family law attorney on your side.
When the family law judge is considering what maintenance should be payable after a dissolution, there is no formula to guide him/her. In fact, the judge at your final hearing is not supposed to apply any “formula” at all; the temporary maintenance formula is thrown out the window, even if it was actually applied before at temporary orders. Instead, Colorado divorce law sets out mandatory factors to consider when determining an award, which including the following:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party’s ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party’s future earning capacity;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.
This leaves quite a bit of discretion to the judge who hears your case. There are no easy-to-define standards or black-and-white guidelines at final orders. What does this mean? In short, it depends upon the judge, but it will also depend on your willingness to resolve the issue by negotiated agreement with your own spouse and your attorney. In the absence of specific numerical guidance, some judges are more generous than others when it comes to maintenance, and the size of the award then depends in part upon the “luck of the draw”, i.e. which family law judge was randomly assigned to hear the case. It also may depend on how good of a day your judge happens to be having when your case is called.
If you cannot or will not reach your own agreement with your spouse about how much you will pay, the Court will consider all evidence relating to all of the above factors and then make a decision as to 1) how much per month, if any, you must pay; and 2) how long it must be paid. The judge will consider the totality of the circumstances, and each and every case depends on the particular facts and details surrounding the situation. Some factors may be also given more weight by the judge than others when determining the amount and duration of maintenance you will have to pay.
WHAT IF MY SPOUSE HAS BEEN OUT OF THE WORKFORCE, HAS NEVER WORKED, OR COULD BE WORKING?
It is very common that during a marriage, one spouse may not be fully and gainfully employed, and instead may be a homemaker, work part-time, or simply be capable of working in a higher capacity than his/her current employment, or may just have left a job. These common situations further complicate the maintenance picture, as the court considers whether to impute minimum wage to a non-working spouse or whether to impute a higher income for the purposes of establishing a maintenance award. If there is no good reason why your spouse cannot work full time (such as a physical disability), the judge will most likely assume that your spouse can at least earn minimum wage, and it will be imputed.
Colorado has been undergoing regular changes with minimum wage, and will continue to do so. It is currently considered at $7.25 per hour, resulting in a gross monthly income of $1,257 per month (7.25 per hour X 40 hours X 52 weeks / 12 months).
Imputing income, as the term suggests, simply means pretending that a spouse earns a different income than the spouse actually earns. Whether to impute income depends upon a variety of factors, such as the expectations established during the marriage, whether a spouse is a full-time student or could be earning more, the availability of suitable employment, proof of past earnings, whether the spouse has sought more lucrative employment, and so forth.
Second only to issues about children, maintenance is often the most contested issue in a dissolution case. You may consider retaining an expert to perform a vocational assessment to determine a spouse’s “employability”, proof of a job search for suitable employment, or other evidence showing earning capacity. Although you will be solely responsible for the initial cost of such an expert, this may be a good way to help the case resolve, since the judge will place weight on the expert’s testimony and report to the Court as to a spouse’s earning capacity.
WHAT ARE THE TAX / INCOME CONSEQUENCES OF SPOUSAL MAINTENANCE?
When a Colorado divorce court awards alimony, the amount of alimony paid is deducted from your income for purposes of a child support calculation, and includable as income to your spouse. Payment of maintenance also shifts the tax burden from the paying spouse to the recipient spouse (note this is for maintenance only, and not child support). In other words, if you are ordered to pay spousal maintenance to your spouse, the maintenance you have paid can be deducted on your income taxes.
Since maintenance will be “counted” as income to the spouse receiving it and a deduction from the income of the spouse paying it, maintenance also matters in terms of things that are typically divided by the Court directly in proportion to income (e.g., transportation expenses for parenting time, extraordinary medical expenses). Depending upon the specific facts of the case, premiums on life insurance ordered by a Colorado divorce court may also be tax deductible.
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