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In January 2014, new maintenance guidelines came into effect in Colorado. They set up a formula for maintenance, where the duration is based upon the length of the marriage, and the amount of maintenance is 40% of the higher income earner's income minus 50% of the lower income earner's income, with a cap of the lower income earner having a total of 40% of the parties' combined incomes. C.R.S. 14-10-114.

But unlike most guidelines, including the child support guidelines, the formula from maintenance guidelines is only "advisory", intended as a starting point for courts, which in turn have the discretion whether or not to apply that amount or not. Moreover, the statute lists a variety of factors that courts are required to consider in each case, which could well result in an order for maintenance which differs from the statute. In other words, the formula is akin to the legislature providing the courts with a "suggested amount" that judges are free to follow or to disregard.

A case just published by the Colorado Court of Appeals has stated that neither the guidelines formula, nor the 40% of combined incomes "cap" in the statute, are binding on courts. In In re: the Marriage of Vittetoe, 2016 COA 71, the trial court had awarded the Wife maintenance which exceeded the 40% cap in the maintenance statute, which reads that the maintenance awarded by the formula "shall not result in the recipient receiving in excess of forty percent of the parties’ combined monthly adjusted gross income." C.R.S. 14-10-114(3)(b)(I).

The Husband argued that the cap was binding by virtue of the word "shall". The court of appeals disagreed, holding that while the cap may appear mandatory, the Husband was trying to read that one provision in isolation rather than in the context of the entire statute. And since the guidelines amount is only advisory to begin with, so too is that cap only advisory. Since the legislature never intended to restrict the court from determining a different amount of maintenance, the trial court did not abuse its discretion by exceeding the cap.

Have a CO divorce or custody case? Black & Graham can help.

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