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SPOUSAL MAINTENANCE - ALIMONY

At the Law Offices of Paul M. Gaide, we realize that financial stresses often attend family law matters, both during the dissolution process and after the conclusion of the case. 

All too often, one spouse controls the majority of the traditional marital income and chooses to attempt to financially control the other spouse, chooses to “punish” the other spouse by withholding appropriate support, or has unrealistic expectations as to the payment or receipt of spousal maintenance.

Since January 1, 2014, the Colorado General Assembly has provided a statutory “guideline” formula for calculating spousal maintenance.  Prior to making the “guideline” calculation, the Court is required to find the amount of each parties’ income, the marital property allocated to each party in the divorce case (which as discussed elsewhere, may reduce the amount of and/or term of spousal maintenance), the financial resources of each party, including but not limited to the actual or potential income from separate or marital property, and the reasonable financial need of the requesting party, as established during the marriage. 

Once the Court, sitting in equity, determines that the requesting spouse is in need of spousal maintenance (which it obviously does not have to do), the Court will apply the guideline formula to determine a “guideline” amount of spousal maintenance. 

In most cases, the “guideline” formula is: [(40% of the higher income earner’s “income”) - (50% of the lower income earner’s “income”)], with a cap of 40% of the combined income of the parties. 

Example:

            Husband’s annual “income”                            $185,000.00   

       +   Wife’s annual “income”                                  $  35,000.00

       =   Total Combined Income                                 $220,000.00      

Guideline Formula:

                       40% of Husband’s $185,000.00          $  74,000.00

                 -     50% of Wife’s $35,000.00                  $  17,500.00

                 =    Annual Maintenance from H to W:       $  56,500.00      

Wife’s Total Income Without Applying the Cap: 

                        Annual Maintenance from H:              $ 56,500.00

                  +    Wife’s annual “income”:                     $ 35,000.00

                  =    Total – Pre Cap Application:               $ 91,500.00                                           

Cap Application:

                         Total Combined Income                     $220,000.00

                 x      40%                                                              .40

                 =                                                             $ 88,000.00

Net Maintenance from H to W After Cap Application: (Cap Application of $88,000.00 - Wife’s annual Income of $35,000 = Annual Maintenance from H to W = $53,000.00.  Application of the Cap reduced Wife's spousal maintenance from Husband under the "guideline" from $56,500.00 to $53,000.00.           

Under the guideline formula, the Example yields a “guideline” amount of maintenance equal to $53,000 per year from Husband to Wife, and total income to Wife of $88,000.00 per year. 

At present, for marriages where the combined joint income of the parties exceeds $360,000.00, special rules apply. 

“Income” is statutorily defined and includes a whole host items of income which some may not think of as income. 

The Court will next determine the “guideline” term of spousal maintenance.  The Colorado Revised Statutes provides for a “guideline” term of spousal maintenance for marriages over three (3) years in duration, and less than twenty (20) years in duration.  Generally speaking, the “guideline” term of spousal maintenance starts at 31% of the duration of a three (3) year marriage, increases to 40% of the duration of a seven and one-half (7 ½) year marriage, and increases to 50% of the duration of a twelve and one-half (12 ½) to twenty (20) year marriage.  Special rules apply for marriages of less than three (3) years and greater than twenty (20) years in duration. 

After making the “guideline” findings as to amount and term, the Court will equitably consider all other factors affecting the award of spousal maintenance, including, without limitation:

  • 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;
  • 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;
  • The lifestyle during the marriage; 
  • The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance;
  • 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; 
  • 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;
  • The duration of the marriage;
  • The amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse; 
  • The age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses;
  • 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;
  • 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
  • Any other factor that the court deems relevant.

The Court’s equitable powers are not limitless.  “After considering the [foregoing] provisions … and making the required findings of fact, 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.”  §14-10-114, C.R.S.

Obviously, this area of the law requires that your attorney have extensive experience, ability and judgment to carefully consider a whole host of relevant information, and the presence to tactically and timely present the same to opposing counsel, the mediator, and if necessary, the Court.

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