Couples do not generally enter into a marriage planning to eventually divorce. They often combine their finances and make career and monetary decisions based on what is best for their family as a whole. Unfortunately, when couples divorce, oftentimes, spouses do not have equal income or earning potential because of career and family decisions that were made during the marriage.
In Colorado, spousal maintenance, sometimes known as alimony, is meant to help ensure that spouses leave the marriage on as equal footing as possible. If you have questions about divorce and spousal support in Colorado, attorneys at Perusse Nixon PLLC can help. We represent clients in all family law matters, including spousal maintenance and maintenance modification.
Spousal Maintenance Advisory Guidelines
Spousal maintenance advisory guidelines were created in Colorado to offer guidance to courts when making spousal maintenance decisions. Before the guidelines were issued, spousal maintenance awards were significantly inconsistent in courts across the state.
Spousal Maintenance Formula
There is no entitlement to spousal maintenance in Colorado, but courts will often grant support when one spouse is in need of financial support, and the other spouse can afford to pay it. A person is “in need” of spousal support if they don’t have enough property or income from employment to meet their reasonable living expenses. Once that threshold determination of “need” has been made, then a court will look at the “guidelines” for determining the amount and duration of spousal maintenance.
These guidelines apply to those couples whose combined income is less than $240,000/year in adjusted gross income and who have been married between 3-20 years. If the household income is higher than that or the marriage lasted longer than 20 years, then the guideline tables do not apply, and the courts will use a slightly different analysis for determining spousal support.
The calculation goes like this:
- Take the combined monthly adjusted gross income of the parties x 40%(.40) minus the lower-earning spouse’s monthly adjusted gross income.
- If that number is zero, then no spousal maintenance will be ordered.
- Non-Taxable Maintenance and under $10,000/mo – If maintenance is non-taxable and the combined monthly AGI is less than $10,000, then multiply the number in #1 above by 80% for the amount of spousal maintenance to be paid.
- Non-Taxable Maintenance and between $10,000-$20,000 – If maintenance is non-taxable and the combined monthly AGI is greater than $10,000, but less than $20,000, then multiply the number in #1 above by 75% for the amount of spousal maintenance to be paid.
For example, if Spouse A earns monthly AGI of $9,000 and Spouse B earns monthly AGI of $5,000, their combined AGI is $14,000. Multiplied by 40% =$5,600. Take $5,600 and subtract the lower-earning Spouse’s AGI of $5,000, and you get $600. Since the combined AGI is greater than $10,000 and is non-taxable, multiply $600 by 75% to get $450.
Duration of the payments is the next question. The guidelines are straightforward in that regard for marriages of between 3-20 years. Generally, the duration of payments goes from 1/3 of the months of marriage for short term marriages to ½ of the total months of marriage for long term marriages.
Here are a couple of online calculators you can use to figure guideline maintenance:
Factors to Consider in Amount and Duration of Payments
In all cases where spousal maintenance is an issue, courts are to consider all relevant factors listed below, especially if the parties have income above $240,00 per year or are in a marriage longer than 20 years.
(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.
After these initial findings, the court will then consider:
(A) The guideline amount and term of maintenance as described above
(B) These factors relating to the amount and term of maintenance:
(I) 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;
(II) The financial resources of the payor spouse, including the actual or potential income from separate or marital property or any other source and the ability of the payor spouse to meet his or her reasonable needs while paying maintenance;
(III) The lifestyle during the marriage;
(IV) The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance;
(V) 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;
(VI) 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;
(VII) The duration of the marriage;
(VIII) The amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse;
(IX) The age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses;
(X) 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;
(XI) 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;
(XII) Whether the maintenance is deductible for federal income tax purposes by the payor and taxable income to the recipient, and any adjustments to the amount of maintenance to equitably allocate the tax burden between the parties; and
(XIII) Any other factor that the court deems relevant.
(C) Whether the party seeking maintenance has met the threshold requirement for a maintenance award, i.e., has sufficient property and individual income to provide for his or her own reasonable needs.
As you can read, spousal maintenance is a complicated topic. You will want to seek the advice of an experienced family law attorney if support is an issue in your divorce.
Marital Agreements and Maintenance Agreement
Courts may consider marital agreements and maintenance agreements when making spousal support decisions. Marital agreements are enforceable in Colorado so long as they comply with the Uniform Premarital and Marital Agreement Act. Spouses may choose to waive their right to spousal maintenance in premarital and postnuptial agreements. However, courts will closely scrutinize whether at the time of enforcement of that prenuptial or marital agreement, waiving spousal maintenance is currently fair and should be upheld or not.
Divorcing spouses may also agree to the amount of maintenance to be paid, or they may agree to waive spousal maintenance altogether. In cases where at least one spouse is not represented by an attorney, courts will not grant a maintenance waiver or approve a maintenance agreement unless the unrepresented spouse acknowledges that he or she is aware of the maintenance support guidelines.
Colorado Spousal Maintenance Attorney
Spousal maintenance is one of the most complicated issues in a divorce. No one likes to pay an ex-spouse. It has the potential to make a significant impact on your future financial stability. If you are getting a divorce in Colorado and spousal maintenance is being requested, you want an experienced family law attorney. Cindy Perusse will help protect your rights and financial well-being.
Contact Perusse Nixon PLLC at 303-228-2285 or online to schedule a low-cost consultation.