Maintenance Modification & Termination

Maintenance Modification & Termination

By Carl O. Graham

maintenance, alimony

“Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.” C.R.S. 14-10-114(5)(a).

If maintenance was determined by the judge at final orders, it is always subject to modification. When the spouses agree to maintenance as part of a separation agreement, they may agree that maintenance is modifiable, or non-modifiable.

If the spouses explicitly agree that maintenance is non-modifiable, stop reading, as the rest of this article does not apply to you. Maintenance must be paid per the terms of the separation agreement, regardless of changing circumstances.

Termination of Maintenance

C.R.S. 14-10-122(2)(a) provides: “Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the earlier of:

  1. The death of either party;
  2. The end of the maintenance term, unless a motion for modification is filed prior to the expiration of the term;
  3. The remarriage of or the establishment of a civil union by the party receiving maintenance; or
  4. A court order terminating maintenance.”

It would be highly unusual for a court order to specify that the payment of maintenance survives death or remarriage of the payee - the author has never seen such an award.

There may be circumstances, albeit unusual ones, where the spouses themselves may agree to maintenance surviving remarriage or a spouse’s death. Examples of such situations would be if maintenance was awarded to compensate one spouse for paying the other spouse’s way through college, or to help offset a disparity in the division of the marital estate.

Effect of an Annulled Remarriage on Maintenance

Maintenance stops when the payee remarries, per C.R.S. 14-10-122(2), but what happens if that remarriage ends in an annulment - does the alimony obligation remain terminated? Not necessarily - maintenance is subject to reinstatement upon a remarriage being annulled.

In In re: Marriage of Cargill, 843 P.2d 1335 (Colo. 1993), the payee spouse remarried 3 years into a 6-year maintenance obligation, thereby ending her first husband’s maintenance obligation. That remarriage then ended by annulment one year later, with the court finding that the wife’s new husband had committed fraud which went to the essence of the marriage.

A deeply-divided Colorado Supreme Court held that “remarriage”, as defined by statute, did not mean simply going through the ceremony of marriage, but meant the status of being married. And because the remarriage was void, it effectively never happened, so maintenance could be reinstated.

Reinstatement of maintenance is not automatic, as the Court recognized that the first husband could have moved on, and made rational decisions based upon the expectation of no longer having a maintenance obligation. So instead, the judge is required to consider a variety of factors including the length of the second marriage, whether the annulment was proper or some form of collusion between the spouses, whether the spouse was receiving maintenance from the invalidated second marriage, the parties’ financial circumstances, etc.

Applicability of Maintenance Formula

The advisory maintenance formula only applies to cases where the decree of dissolution was entered after January 1, 2014. How about a maintenance award from prior to that, which is modified in 2019? Does the formula then apply?

The short answer is no: Pursuant to C.R.S. 14-10-114(5)(a), the advisory formula does not apply when a maintenance award from prior to 2014 is being modified.

However, if the original maintenance award was after that date, then the advisory formula will still apply, with the caveats noted in the maintenance article.

Legal Standard for Modification

Assuming that maintenance is subject to modification (i.e. there is no prohibition against modification in the separation agreement), the legal requirement to modify maintenance is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” C.R.S. 14-10-122(1)(a).

With child support, the statute includes more clarity - the change would result in at least a 10% difference in support owing. But the maintenance statute does not contain such a trigger, which means it will depend entirely upon whether a spouse can persuade the court of a “substantial and continuing” change in circumstances.

Note the use of the word “and”. A payor spouse may lose his job, and not be able to afford the same maintenance, but most job losses are only temporary. Seeking a maintenance modification immediately upon losing employment would probably be premature, as the spouse will be unable to establish that the change was “continuing”.

Conversely, a spouse may have a permanent reduction in income that is fairly modest, such as a 5% reduction from $20,000/mo to $19,000/mo. Such a change is unlikely to be considered substantial enough to render the original award unfair. On the other hand, a 20% reduction in salary would almost certainly be considered substantial enough.

Retirement & Alimony

Even though maintenance may not have an explicit termination clause, rarely is it going to be “permanent”. Often, separation agreements will build in a clause that maintenance terminates, or at least is subject to review, upon retirement. Moreover, even if there is no explicit reference to retirement, upon retirement, the paying spouse’s financial circumstances will usually change for the worse, resulting in that spouse seeking a review, or even a termination, of maintenance. However, as explained in this article, neither maintenance nor child support terminate automatically upon retirement.

Can a person simply retire at the ripe old age of 50, and seek a maintenance adjustment? No - he/she would be voluntarily underemployed, and likely have an income imputed based upon his/her earning potential.

C.R.S. 14-10-122(2)(c) provide that there is a rebuttable presumption that a retirement is in good faith if the payor spouse has reached “the usual or ordinary retirement age when he or she would be eligible for full United States social security benefits.” For details, look at the social security retirement age chart, from the Social Security Administration. The age is currently 66, for someone born between 1943 and 1954, but it increases by two months per year to the age of 67, for someone born in 1960 or later.

Finally, note that the court will take into consideration the social security benefits received by the spouses when determining whether maintenance should end, or be modified, upon retirement. For more information, see the article Social Security, Alimony & Child Support.

Cohabitation of Payee

Can the payor stop paying maintenance when the payee spouse cohabitates with a boyfriend/girlfriend? No.

Unlike some states, in Colorado there is no automatic termination of maintenance upon cohabitation by the recipient spouse, nor even a trigger to review maintenance (cohabitation was at least a trigger for review in an early draft of the bill, but that clause did not make it into the final act).

Occasionally, there may be a cohabitation clause in a separation agreement, providing for a review, reduction, or termination of maintenance. However, unless the payor is being particularly generous with the maintenance, the payee spouse would typically have no incentive to agree to such a provision, so these provisions are rare.

Finally, while cohabitation will not automatically trigger a review of maintenance, if a spouse’s monthly needs are diminished due to someone else paying his/her expenses, then that may well justify at least seeking a reduction in maintenance - assuming that the spouses did not agree to non-modifiable maintenance.

Retroactive Alimony Modification

The effective date of a maintenance modification is not the date of the triggering event (losing one’s job, for example), or even the date of the hearing. Pursuant to C.R.S. 14-10-122(1)(a), a modification is only effective for payments which were due after the date the motion to modify was filed, and per subsection (1)(d), “In no instance shall the order be retroactively modified prior to the date of filing.”

Moreover, the court has discretion, albeit limited, whether to modify maintenance effective when the motion was filed, or retroactive to some later date (but not earlier): The modification “should be effective as of the date of the filing of the motion, unless the court finds that it would cause undue hardship or substantial injustice”. C.R.S. 14-10-122(1)(d).

Practically speaking, maintenance is almost always modified retroactive to the date of filing, absent negotiation for a different date as part of a settlement. The author has only rarely seen a judge find a hardship which warrants a later modification date.

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Tag: 
Family Support
Secondary Tag: 
Modification of Orders