MAINTENANCE

Maintenance Overview

In Colorado, spousal support (otherwise known as “alimony”), is termed “maintenance” and is determined pursuant to C.R.S. §14-10-114 et. seq.  Maintenance can be ordered by the Court by stipulation of the parties or after a contested hearing, as part of both temporary and permanent orders in actions for dissolution of marriage, legal separation or declaration of invalidity.  Unlike child support, maintenance is tax deductible to the spouse who is paying maintenance and must be declared as income by the spouse who is receiving the maintenance.


Temporary Maintenance

In many marriages, there is a large disparity between the incomes of each party or, in some cases, there is only one party who is generating income while the other party may be a full time homemaker.  When parties to a marriage separate and file for divorce, the lower income spouse needs temporary maintenance to meet their living expenses pending the entry of final orders in the case.  Colorado law authorizes the Court to determine temporary maintenance with due consideration for the advisory maintenance guidelines which provide a formula for the calculation of maintenance.  Although the parties and the Court are not bound by this formula, it is generally utilized as the basis for settlement negotiations or the Court’s Order after a contested hearing where the Court will also review all of the factors which are set forth in the maintenance statute.  As part temporary orders, the Court will also determine the temporary payment of marital debt. 


Maintenance as part of Permanent Orders

If a party is requesting maintenance, the Court will determine whether maintenance should be ordered and, if so, the amount and duration of the maintenance term.  The advisory maintenance guidelines which are set forth in C.R.S. §14-10-114 include a formula whereby the amount of maintenance is equal to forty per cent of the higher income party’s monthly adjusted gross income less fifty  per cent of the lower income party’s monthly gross income,  The maintenance amount has an additional cap so that the lower income spouse does not receive more than forty per cent of the parties’ combined monthly adjusted gross income after the maintenance is added to that party’s income. The statutory maintenance guideline applies to marriages which are at least three years in duration and where the parties combined gross income does not exceed the greater of $240,000.00 or the uppermost limits of the child support guidelines which are currently $360,000.00.  The maintenance guideline also includes a chart which shows the guideline term of maintenance based upon the number of months that the parties have been married.

As noted above, the maintenance guideline is advisory only.  In determining maintenance, the Court must consider numerous additional factors such as the financial resources of the parties, the lifestyle they maintained during the marriage and the age and health of each party.  An experienced family law attorney will duly consider all of these factors in preparing for settlement negotiations or trial since maintenance is about a divorcing party’s financial well-being rather than just plugging in the numbers on the statutory guideline. 


Contractual/Non-Modifiable Maintenance Vs. Non-Contractual/Modifiable Maintenance

In divorce cases which involve the termination of a marriage of significant duration, the negotiation of a maintenance settlement involves a determination of whether the maintenance order should be contractual, and non-modifiable, or non-contractual and modifiable by the Court.  This determination is a critical component of settlement negotiations in maintenance cases. Divorcing parties who have significant medical conditions or who have great uncertainty in their current employment are at a particular risk if they reach a settlement in their divorce without a thorough understanding of the difference between contractual versus non-contractual maintenance.  At the Law Office of Edra J. Pollin, we take pride in educating our clients on this issue and working toward a just result which duly acknowledges the unique circumstances of our client’s financial situation.


Contractual/Non-Modifiable

In divorce cases which involve the termination of a marriage of significant duration, the negotiation of a maintenance settlement involves a determination of whether the maintenance order should be contractual, and non-modifiable, or non-contractual and modifiable by the Court.  This determination is a critical component of settlement negotiations in maintenance cases. Divorcing parties who have significant medical conditions or who have great uncertainty in their current employment are at a particular risk if they reach a settlement in their divorce without a thorough understanding of the difference between contractual versus non-contractual maintenance.  At the Law Office of Edra J. Pollin, we take pride in educating our clients on this issue and working toward a just result which duly acknowledges the unique circumstances of our client’s financial situation.


Waiver of Maintenance

Either or both of the parties to a divorce or legal separation may waive their right to maintenance while acknowledging their understanding that the waiver cannot be changed and the Court has thereby lost jurisdiction to enter maintenance at any time.  If one party does not have an attorney in the proceeding, the Court cannot accept the maintenance waiver unless the party clearly states that they are aware of the maintenance guidelines.


Termination of Maintenance

If the parties settle their case, it is the attorney’s job to draft the final Separation Agreement which should clearly state when maintenance terminates.  Even if the duration of maintenance is for several years, maintenance generally terminates upon the remarriage of the party who is receiving the maintenance or upon the death of either party.  Cohabitation is not the basis for maintenance to terminate except in the unusual case where the parties have specifically agreed that cohabitation will result in the termination of maintenance. 


Life Insurance as Security for Maintenance

If one party is ordered to pay maintenance, it is standard for the parties to agree, or for the Court to order, that the paying party shall maintain life insurance equal to the present value of the remainder of their maintenance obligation as security for the maintenance in the event of the payor’s death before the end of the maintenance term. 


 


Pollin Law: a Denver,Colorado Law Firm Specializing in Domestic Relations,
Child Custody and Divorce.

Contact Us: 303.721.0383 • Fax: 303.721.0407 • pollinlaw@aol.com
3545 South Tamarac Drive,Suite 210,Denver Colorado 80237