Spousal Maintenance (Alimony)

maintenance, alimony

Difference Between Maintenance, Alimony & Spousal Support

Colorado statutes call support to a former spouse maintenance. By contrast, support paid to the other parent (who is often also one's former spouse) which is intended to support a child is called child support. Together, these two are sometimes known as family support.

Most people outside the legal field refer to maintenance as alimony, though some call it spousal support. I've even seen separate maintenance. But while "maintenance" is, strictly speaking, the legal term and the one we tend to use in court, they all mean the same thing. This article will use the terms interchangeably.

Regardless of what we call it, in a divorce, legal separation or annulment case, the judge will determine whether either spouse is entitled to spousal maintenance under Colorado law.

Why Does Colorado Have Alimony?

C.R.S. 14-10-114(1)(a) explains the rationale behind maintenance: “The economic lives of spouses are frequently closely intertwined in marriage and that it is often impossible to later segregate the respective decisions and contributions of the spouses; and consequently, awarding spousal maintenance may be appropriate if a spouse needs support and the other spouse has the ability to pay support.”

In short, maintenance “levels the playing field” between spouses, one of whom may have advanced his/her career while the other contributed to the marriage in other ways.

Colorado Maintenance Formula Amount

This article is going to cut to the chase - despite a lengthy maintenance statute which sets for criteria for qualifying for maintenance, and then factors the court is required to consider when determining both the amount and duration of maintenance, the two most important factors are (1) the spouse’s incomes, and (2) the duration of the marriage.

In recognition of the importance of these issues, the Colorado legislature enacted maintenance guidelines which apply to cases where the decree of dissolution entered after January 1, 2014. However, to complicate matters, the guidelines are not binding, or even presumptive, as child support is, but instead C.R.S. 14-10-114(3)(e) creates a formula which is only “advisory”:

“The maintenance guidelines set forth in paragraph (b) of this subsection (3) do not create a presumptive amount or term of maintenance. The court has discretion to determine the award of maintenance that is fair and equitable to both parties based upon the totality of the circumstances. The court shall make specific written or oral findings in support of the amount and term of maintenance awarded pursuant to this section or an order denying maintenance.”

Another caveat is that the formula only applies to cases where the parties’ combined incomes is $240,000/yr or below ($20,000/mo).

With those caveats in mind, here is the formula for taxable maintenance (more on this below), based upon the parties’ monthly Adjusted Gross Incomes (AGI): 40% of the parties’ combined AGI minus the lower income party's AGI. C.R.S. 14-10-114(3)(b)(I)(A).

Non-Taxable Maintenance. If the parties’ combined monthly incomes is $10,000 or below, an 80% multiplier is applied against the above formula. If the parties’ combined monthly incomes is above $10,000, then a 75% multiplier is applied against the above formula.

Example #1: Jan earns $10,000/mo, and Pat earns $4000/mo. Formula amount is $1600/mo:

10,000 + 4000 = 14,000 (Add both parties’ incomes)
    14,000 x 0.40 = 5600 (Multiply by 40%)
    5600 - 4000 = 1600. (Deduct lower income from the 40%).

Since the combined incomes exceed $10,000, if maintenance is not taxable, then apply a 75% multiplier against that amount, so the advisory maintenance would be $1200.

Example #2: Tracy earns $7000/mo and Alex earns $2000/mo. Formula amount is $1800/mo:

    7500 + 2000 = 9500
    9500 x 0.4 = 3800
    3800 - 2000 = $1800/mo.

Example #3: Andy earns $18,000/mo and Kyle earns $6000/mo. Formula amount is N/A, because the parties’ combined monthly incomes is $24,000, which exceeds the $20,000 limit.

How binding is the formula? It depends entirely upon the judge. Most attorneys will at least use the formula as the starting point to come up with a rough estimate for what maintenance may be. Some judges will apply the formula, others will ignore it and come up with their own number, applying the traditional factors set forth below. But even judges who do that tend to end up roughly comparable to the formula amount. I’ve seen judges award less than the formula amount many times (usually not by much), but do not recall a judge ever exceeding it.

Despite the formula, a judge cannot blindly apply the maintenance guidelines without making the requisite statutory findings. For that reason, The spouse seeking income should always introduce the parties’ sworn financial statements, and put on evidence of the requesting party’s need, and the other party’s ability to pay, and the other factors.

What about incomes over $240,000/yr? As indicated, the formula is not binding anyway, and it’s not even advisory for incomes above that threshold. This means that you would need to argue the traditional factors set forth below, but at the end of the day, maintenance is unlikely to be lower for such incomes than it would have been had the spouses’ incomes been exactly $240,000/yr.

Formula Duration of Maintenance

The maintenance formula only applies to cases where the parties have been married for three years or more. A spouse who has been married for under three years is generally going to be a poor candidate for maintenance, absent compelling circumstances which typically involve financial sacrifice by the requesting party, such as quitting a job to raise a child, or to move across the country/world for the sake of the marriage.

Traditionally, in El Paso County, once someone qualified for maintenance, it was typically awarded for about ⅓ the length of the marriage up (the so-called “Anderson Formula”, for those who practiced when Douglas Anderson was the presiding family law judge). And after about 20 years of marriage, courts would consider maintenance for about half the duration, and as you got closer to 30 years, may consider “permanent” maintenance.

C.R.S. 14-10-114(3)(b)(II)(B) sets forth the advisory term of maintenance for marriages from 3-20 years, with a the duration of marriage being applied against a multiplier which increases based upon the duration of the marriage.

At 36 months of marriage, the advisory multiplier is 31%. The multiplier increases gradually (by 0.165 percentage points per month of marriage) until 150 months of marriage (12½ years) when it caps out at 50%, or a term of maintenance one-half the duration of the marriage.

Beyond 20 years, there is no set formula, but the statutory guidance is that it should not be for less time than a 20-year marriage: “When the duration of the parties' marriage exceeds twenty years, the court may award maintenance for a specified term of years or for an indefinite term, but the court shall not specify a maintenance term that is less than the maintenance term under the guidelines for a twenty-year marriage without making specific findings that support a reduced term of maintenance.” C.R.S. 14-10-114(3)(b)(II)(A).

Process to Determine Alimony

Having discussed the formula first, here is the actual statutory process the court is required to follow when determining maintenance.

1. Initial Threshold for Maintenance

Though maintenance is seemingly automatic given a significant disparity in income, per C.R.S. 14-10-114(3)(a)(I) the trial is first required to make five factual findings before considering maintenance:

"(A) The amount of each party's gross income;
(B) The marital property apportioned to each party;
(C) The financial resources of each party, including but not limited to the actual or potential income from separate or marital property;
(D) Reasonable financial need as established during the marriage; and
(E) Whether maintenance awarded pursuant to this section would be deductible for federal income tax purposes by the payor and taxable income to the recipient."
 
Failure to make the requisite findings before determining maintenance is error. In an unpublished decision from the Colorado Court of Appeals, the spouses agreed at mediation that the husband would be awarded his PERA, and as a result of that PERA income, the husband waived maintenance. The trial court adopted the parties' mediation agreement first, and then excluded the PERA from the property division to avoid it being double-counted as both income to the husband for maintenance purposes, and as an asset to the husband for property purposes. The Court of Appeals reversed, finding it was error to award maintenance, even to accept the parties' agreement, before dividing the marital estate. In re: Marriage of Bergles (2020).

2. Consider Advisory Maintenance Guidelines

Next, the trial court is required to consider the advisory guidelines. But that's only part of the inquiry, not the end - the court must at least know what the guidelines amount advises for the amount and duration. C.R.S. 14-10-114(3)(a)(II)(A).

3. Consider Statutory Factors

The third step is that the trial is required to consider thirteen factors set forth in C.R.S. 14-10-114(3)(c):

  1. Financial resources of the spouse seeking maintenance, including actual and potential income on property set aside to that spouse, and the ability of the spouse to meet his/her needs.
  2. Financial resources of the spouse paying maintenance, including actual and potential income on property set aside to that spouse, and the ability of the spouse to meet his/her needs while paying maintenance.
  3. The lifestyle during marriage.
  4. Distribution of marital property.
  5. Both parties’ incomes, employment, and employability, including after reasonable training, and any reduction in employment due to the needs of a child.
  6. Whether one spouse has traditionally earned more or less income than at the time of dissolution.
  7. Duration of the marriage.
  8. The amount and duration of temporary maintenance that was paid.
  9. Age & health of the spouses.
  10. Contributions one spouse has made to the marriage or education or career of the other, including payment of a spouse’s separate debts or enhancement of a spouse’s separate property.
  11. Whether to award nominal maintenance to preserve a maintenance claim should circumstances change in the future.
  12. Whether maintenance is tax-deductible.
  13. Any other relevant factors.

4. Unable to Support Self

Finally, after following all of the steps above, the last step is:

"the court shall award maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home."

C.R.S. 14-10-114(3)(d).

However, the devil is in the details - reading that paragraph above, one may get the impression that a spouse who does not need maintenance to survive will not qualify for it. That interpretation would be contrary to a body of law which has developed over the years, and to other factors set forth in the statute.

The Bottom Line

What does all of this mean? It depends upon the evidence presented, and on the judge (there may be some degree of “luck of the draw” in being assigned a judge who is considered more generous, or less generous, on maintenance). Parties must address all of the statutory factors, only to often end up finding the judge applying the guidelines amount anyway.

The judge cannot simply short-circuit the statutory process and apply the advisory maintenance guidelines, but must make all of the requisite findings. C.R.S. 14-10-114(3)(e) provides: "The court shall make specific written or oral findings in support of the amount and term of maintenance awarded pursuant to this section or an order denying maintenance."

When a judge does not make the necessary findings, the order may be reversed. In In re: Marriage of Wright, 2020 COA 11, a trial judge did just that. The court found that there was a disparity in income, and made the most basic of findings: “[Wife] has a need for spousal maintenance and that [Husband] has the ability to pay.” Period - there was no attempt to discuss the relevant statutory factors.

The Court of Appeals reversed, finding that the trial court cannot make general findings, but must make specific findings addressing the factors. ¶ 20. And in language making clear that the advisory guidelines are only a part of the overall consideration, not the determining factor, the court stated: "it appears that the court gave the guideline amount presumptive effect, then looked for but did not find any reason to deviate from that amount. This is not the process required by statute.” ¶ 22.

Does Fault Affect Maintenance?

No. Not only is Colorado a no-fault state, but nowhere in any of the factors discussed above is fault listed as a relevant factor. Finally, if that is not clear enough, C.R.S. 14-10-114(2) explicitly provides: “An award of maintenance shall be in an amount and for a term that is fair and equitable to both parties and shall be made without regard to marital misconduct.”

Tax Consequences of Maintenance

Traditionally, maintenance has been tax-deductible to the payor, and taxable to the payee, with both adjustments being made on the front page of the Form 1040.

However, the 2017 “Tax Cut & Jobs Act” changes that for decrees entered on or after January 1, 2019. Now, maintenance is not tax-shifting, which means that like child support, the payor does not receive a deduction, and it is not treated as taxable income to the payee.

If the decree was issued on or before December 31, 2018, maintenance is still tax-deductible - so those operating under existing decrees do not need to worry about a sudden change to their taxes.

In 2018, the Colorado Assembly addressed the tax change by passing HB 18-1385, with three significant changes:

  • Formula maintenance is reduced by 20% (combined incomes below $10,000/mo) or 25% (combined incomes above that), as indicated above.
  • Whether maintenance is taxable is an explicit factor the court is to consider when applying the maintenance factors.
  • For purposes of calculating child support, a 1.25 multiplier is applied against non-taxable maintenance being paid (C.R.S. 14-10-115(3)(a)(II)) or received (C.R.S. 14-10-115(5)(a)(I.5)).

Temporary Alimony

While a case is pending, one spouse may have a need for maintenance but cannot wait until the decree of dissolution is granted. In such cases, the court may issue a temporary maintenance award, which expires upon dissolution.

Per C.R.S. 14-10-114(4)(a)(I), the court should apply the same maintenance factors set forth above, “that are relevant to a determination of temporary maintenance.” Moreover, the court may consider any additional factors that may be unique to temporary maintenance, including the payment of family expenses or debt.

While at permanent orders, the court may consider long-term needs, including a spouse saving for retirement or having a “nest egg” for a rainy day, these typically are not considerations at temporary orders.

However, at temporary orders it may be unrealistic to expect spouses to have fully-adjusted to the new circumstances of separation or divorce. An example may be that a spouse may have unavoidable expenses which cannot readily be changed (e.g. caring for horses, or paying short-term rent). Or it may not be realistic to expect a non-working spouse to suddenly obtain suitable employment.

The result is that courts tend to accept the status quo of the spouses more at temporary orders, whereas by the time the dissolution is granted, months down the road, they expect spouses to have shed unnecessary expenses, obtained employment, etc.

Finally, because the considerations at temporary maintenance are not necessarily identical to those at dissolution, C.R.S. 14-10-114(4)(c) provides for a fresh look at maintenance at final orders: “A determination of temporary maintenance does not prejudice the rights of either party at permanent orders.”

Modification of Maintenance

Unless the parties have expressly agreed to limit modification, either spouse may seek a modification of maintenance when circumstances change. For more details, see the Maintenance Modification & Termination article.

Do You Need an Alimony Lawyer in Colorado Springs?

The family law attorneys at Graham.Law have years of experience helping clients through the Colorado legal system. We know Colorado family laws, inside and out, from divorce to legal separation, from annulment to military divorce issues. And we understand alimony and family support. For more information about our El Paso County family law firm, click on:

Colorado family law is all we do. Period.

Team Member: 
Carl O. Graham