Areas of legal expertise

How the court determines maintenance amount and duration.

Maintenance, commonly known as alimony, is spousal support. The purpose of maintenance is to provide the lower-earning spouse sufficient income to support herself or himself during the divorce process and following the dissolution of the marriage.

On January 1, 2014, a new law went into effect providing judges with advisory maintenance guidelines. The guidelines utilize a formula based on each party’s income or potential income and the length of the marriage.

The formula can be helpful in negotiating maintenance. Before entering into an agreement, it’s important to understand the differences between modifiable maintenance and contractual, non-modifiable maintenance.

The court must consider numerous factors in conjunction with the formula when determining whether maintenance is appropriate, and if so, the term and length of the maintenance award.

These factors are contained in C.R.S. § 14-10-114 and are as follows:

  1. The financial resources of the recipient spouse, including the actual or potential income from separate or marital property or any other source and the ability of the recipient spouse to meet his or her needs independently;
  2. The financial resources of the payer spouse, including the actual or potential income from separate or marital property or any other source and the ability of the payer spouse to meet his or her reasonable needs while paying maintenance;
  3. The lifestyle during the marriage;
  4. The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance;
  5. Both parties’ income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary, and any necessary reduction in employment due to the needs of an unemancipated child of the marriage or the circumstances of the parties;
  6. Whether one party has historically earned higher or lower income than the income reflected at the time of permanent orders and the duration and consistency of income from overtime or secondary employment;
  7. The duration of the marriage;
  8. The amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse;
  9. The age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses;
  10. Significant economic or noneconomic contribution to the marriage or to the economic, educational, or occupational advancement of a party, including but not limited to completing an education or job training, payment by one spouse of the other spouse’s separate debts, or enhancement of the other spouse’s personal or real property;
  11. Whether the circumstances of the parties at the time of permanent orders warrant the award of a nominal amount of maintenance in order to preserve a claim of maintenance in the future; and
  12. Any other factor that the court deems relevant.

Maintenance has significant tax implications. So in addition to understanding the legal aspects of maintenance, it’s important to consult with a tax advisor to understand the tax ramifications of maintenance.