Alimony / Maintenance
In Colorado divorce, legal separation and annulment cases, the family law judge will determine whether to award one spouse alimony (called "maintenance" in Colorado, and also known as "spousal support").
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. There is no automatic right to alimony in Colorado, even if one spouse needs it. Rather, the Colorado divorce court will look at a variety of factors set out in C.R.S. 14-10-114, such as the parties' standard of living before the marriage, and the other spouse's ability to pay before deciding whether alimony is appropriate under Colorado law.
Generally, the longer the marriage, the more likely the court is to award alimony in Colorado. 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 years or more), the Colorado divorce judge may even award one spouse lifetime alimony. Maintenance in Colorado is terminated by the death of either party, or the remarriage of the spouse receiving alimony.
Temporary Colorado Alimony Law
There is a presumed level of temporary alimony in Colorado, in cases where a couple's combined gross annual income is under $75,000. Unless evidence shows a different amount is warranted, at a temporary orders hearing the Colorado family law magistrate will 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 Colorado alimony formula applies regardless of the length of the marriage.
Example: Pat earns $4000 per month, and Jan earns $1500 per month. Pat's presumptive temporary maintenance payment will be $850 ($1600 - $750) per month, until the permanent orders hearing.
For couples where the combined gross annual income exceeds $75,000, there is no set standard for temporary alimony in Colorado, and instead the courts are supposed to utilize the factors set out for post-dissolution maintenance (see section below). 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.
Maintenance after Dissolution
When the family law judge is considering what maintenance should be payable after a dissolution, there is no formula to guide him/her. Instead, Colorado divorce law sets out the factors to consider when determining an award, 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.
What does all of this mean? It depends upon the judge. 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.
Finally, note that Colorado divorce law is consistently no-fault. C.R.S. 14-10-114(4) requires that maintenance be determined "without regard to marital misconduct."
Often 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.
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.
As a result of Amendment 42, which was approved by Colorado voters in November 2006, the Colorado minimum wage as of January 1, 2008 is $7.02 per hour ($1217 per month), or $3.83 per hour for tipped employees. This figure will be increased annually in accordance with the Denver-Boulder-Greeley consumer price index.
Imputing income, as the term suggests, 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 could be earning more, the availability of suitable employment, whether the spouse has sought more lucrative employment, etc.
Resolving the issues is not easy, and maintenance is often the most contested issue in a dissolution case, and may involve a vocational assessment to determine a spouse's "employability", proof of a job search for suitable employment, or other evidence your Colorado divorce lawyer can discuss with you.
Tax Consequences of Maintenance
When a Colorado divorce court awards alimony, this shifts the tax burden from the paying spouse to the recipient spouse (note this is for maintenance only, and not child support). Depending upon the facts of a case, the premiums on life insurance ordered by a Colorado divorce court may also be deductible.