Alimony, or “maintenance” as it’s called in Colorado, can be one of the most complex issues in divorce and legal separation cases. To ask for it, a party must be married or in a civil union. Courts then follow a multi-step analysis, regardless of whether the request is for temporary maintenance pending resolution of the case or at final orders.
Judges need to know how much property each party is leaving the marriage with before addressing maintenance in permanent orders, so courts must first divide marital property and debts or approve a settlement agreement related to same. This includes a determination regarding each spouse’s separate/non-marital property, if any – while Colorado courts cannot award someone’s separate property to his or her ex-spouse, the property and its income-producing potential are highly relevant when a court is deciding whether to grant maintenance. For example, people without the ability to earn much money in the workplace may still be denied maintenance if their separate property, such as rental properties they owned prior to the marriage, or the marital property they are keeping after the divorce will bring in enough money to maintain their reasonable needs. “Reasonable needs” is a subjective term that varies from marriage to marriage, often requiring the use of historical data to aid the court in understanding how a couple lived.
Since 2014, judges are also required to consider, but not necessarily follow, the “Colorado maintenance guidelines.” Due to changes in federal tax law, the most recent version of these guidelines only applies to couples who gross $240,000 or less per year combined. The guidelines, based in part on a formula calculation, indicate a specific amount per month and a total number of months for payments to last – for long-term marriages, the guideline term is equal to half the length of the marriage. Unlike child support, these guidelines are not presumptive – courts are only required to consider them, not order them outright, and only if they apply.
After making initial findings, including a threshold conclusion that a party cannot meet his or her reasonable needs without maintenance, courts then look at non-exhaustive list of other factors to decide how much maintenance to award and for how long, including: the length of the marriage, the ability of the other spouse to pay, potential income if someone is un- or under-employed, economic and noneconomic contributions to the marriage, each party’s age and health, including any uninsured medical expenses, and the lifestyle of the marriage. That said, courts are not required to ensure the parties maintain the same lifestyle forever.
Judges have wide discretion and apply a holistic analysis that will vary from courtroom to courtroom. Given the inherent uncertainty of predicting what a judge will do, couples can creatively negotiate an uneven division of property and debts to avoid maintenance, often referred to as a “maintenance buyout.”
If you or a loved one is considering divorce or legal separation and, having a skilled and knowledgeable attorney to guide them through the law of maintenance is critical. The attorneys at Wells Family Law are here to help.