Maintenance

Colorado Alimony Attorney

General Considerations

Spousal maintenance, formerly known as alimony, may be granted as part of a divorce (dissolution of marriage) or legal separation. Maintenance may also be modified in a subsequent action.

Maintenance is not automatic. In fact, if the party seeking maintenance does not expressly request maintenance in the initial petition for dissolution of marriage or legal separation, any right to maintenance is permanently waived. Similarly, if a party voluntarily and knowingly signs a separation agreement waiving maintenance, he or she is forever barred from receiving maintenance.

Maintenance does not begin accruing until the parties physically separate, the petition is filed or the respondent is served, whichever occurs last. Similarly, maintenance cannot be modified or terminated retroactively. An order modifying maintenance applies only to those payments due after a motion to modify is filed.

 

Temporary Maintenance

Temporary maintenance is designed as a “temporary blending” of the parties’ incomes in recognition of their former living arrangements as man and wife. Temporary maintenance ends when the court issues permanent orders, that is, a decree of divorce or legal separation.

For parties whose combined annual gross income is less than $75,000, there is a rebuttable presumption that temporary maintenance is owed to the party with the lower income. The presumptive amount of the temporary maintenance is determined by formula. Currently, the amount is 40% of the husband’s income less 50% of the wife’s income, assuming that the husband earns more than the wife. (If she earns more than him, she may technically owe him temporary maintenance). Adjustments must also be made for maintenance actually paid by the husband pursuant to a previous court order and for child support paid to support children other than those of the parties.

For parties whose combined gross income exceeds $75,000, there is no presumption that temporary maintenance is warranted. Instead, the court will consider whether to award temporary maintenance based on the same factors used to determine permanent maintenance. See, below.

The parties can waive or modify the presumptive amount of temporary maintenance, subject to the court’s review and approval.

 

Rehabilitative Maintenance

Rehabilitative maintenance is essentially a form of temporary maintenance that continues past the date of the decree of divorce or legal separation. Rehabilitative maintenance is designed to supplement the income of the receiving spouse while he or she obtains employment-related education or retraining in order to become financially independent.

 

Permanent Maintenance

Love comes and goes, but maintenance endures… WDT

The term “permanent” maintenance refers to the terms of maintenance ordered in the decree of divorce or legal separation. The amount is always subject to modification or termination and permanent maintenance will terminate automatically upon the death or remarriage of the party receiving maintenance. Occasionally, the party paying maintenance will file an action to declare his or her former spouse married to a new partner under common law in order to take advantage of this provision.

In order to award permanent maintenance, the court must find that the party seeking maintenance (almost always the wife) lacks sufficient property to provide for her “reasonable needs” and is either unable to support herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that she not be required to seek employment outside the home.

The court will consider other relevant factors including the financial resources of the wife, her ability to meet her needs independently, whether she receives child support, the time necessary to acquire sufficient education or training to enable her to find appropriate employment, and her future earning capacity. Other important considerations include the standard of living established during the marriage, the duration of the marriage, and the age and physical and emotional condition of the wife. Finally, the court will consider the ability of the husband to meet his own needs while meeting those of the wife.

 

How Much Will the Court Award?

There is no practical way to predict whether a particular judge in a particular case will award maintenance and upon what terms. To add to the difficulty, the court has wide discretion to fashion any maintenance order it deems fair and reasonable. For this reason, it is highly advisable to hire a family lawyer with significant litigation experience to represent you at both the temporary orders hearing, if any, and the permanent orders hearing so that you can present your very best case-either for or against maintenance.

 

Factors Favoring Maintenance

The following factors tend to increase the likelihood a court will award permanent maintenance:

  • Long-Term Marriage: the longer the marriage, the stronger the recipient’s claim for maintenance.
  • High Standard of Living: permanent maintenance is more appropriate where the recipient spouse’s income is inadequate to provide her with the same standard of living she enjoyed during the marriage
  • Disparity of Income: the greater the disparity in income, the greater the likelihood that maintenance will be ordered.
  • Actual and Potential Earnings of the Parties: the actual and potential future earnings of each spouse are important factors for analysis. Also, if one spouse is intentionally under-employed, the court may impute a higher income level to him or her.
  • Assets of the Parties: the assets and financial resources of the parties, including all marital assets and separate property owned by each party, determine whether maintenance is justified.
  • Education: a college degree obtained by one spouse during the marriage is not “marital property.” However, the other spouse, who supported the family and deferred his or her own education while the first spouse obtained a college degree, has a strong equitable claim for maintenance.
  • Expectations: the parties’ expectations and/or agreements, even verbal agreements, about who would contribute what financially to the marriage are always relevant to determine whether maintenance is justified.
  • Unemployment of the Recipient spouse: if the recipient spouse is unemployed or only marginally employed through no fault of her own, the likelihood of a maintenance order increases.
  • Psychological and Physical Health of the Recipient Spouse: a party with proven physical or psychological health conditions, especially those that may interfere with his or her ability to work, may be more likely to receive a maintenance award.

 

Defending a Maintenance Case

Always consider the possibility of entering into a settlement agreement with your spouse or former spouse prior to asking the judge to decide a maintenance claim. A skillful family attorney can often help you negotiate settlements on terms acceptable to both you and your spouse or former spouse. If necessary, the parties can mediate their dispute through a neutral third party. As part of any settlement, you should always demand that your spouse waive maintenance because the waiver can never be revoked.

Maintenance cases are often highly contested, especially when one of the spouses owns substantial assets or has a substantial income and the other does not. A permanent maintenance order can last for many years or even decades. Even if it doesn’t, the present value of a long string of monthly maintenance payments may exceed all other financial concerns relating to the divorce

If settlement is not an option, the following factors are commonly cited when trying to defeat a request for maintenance or to reduce the amount of maintenance:

  • Determine Whether the Court has Jurisdiction to Modify Maintenance: if your former spouse failed to raise the issue of maintenance in the original divorce or separation case, he or she can never raise the issue again. The same is true if he or she waived maintenance. The court may not have reserved jurisdiction over maintenance when the court issued the decree of dissolution or legal separation. If so, your spouse is not legally entitled to modify maintenance unless she first proves that there has been a “substantial and continuing” change in circumstances to justify the modification.
  • Built-In Reduction of Maintenance: there is no law requiring that maintenance continue unabated until remarriage or death of your spouse. Except in extreme cases, a court can usually be convinced to gradually reduce the amount of maintenance over time, in predetermined increments. Often, the payments can be phased out altogether, especially if you can show that your spouse is capable of supporting herself if she receives more education or training.
  • Challenge Request for Maintenance Based on Your Future Income: the court cannot order you to pay maintenance beyond your current means to pay. Resist requests, in any form, for maintenance based on projections about your future income.
  • Divide Marital Property to Reduce or Eliminate Maintenance: examples include giving income-producing property to your spouse or assigning all or some of the income for a period of years in return for a full waiver of maintenance.
  • Lump Sum Settlement: if faced with an onerous maintenance order, it often pays to consider a lump-sum settlement with your former spouse.

Call today for a free evaluation of your maintenance case. There is no obligation.

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