Alimony, or “maintenance,” as it’s referred to in Colorado, ensures that the basic financial needs of a disadvantaged spouse are met after a divorce. It’s typically imposed only if there is no other feasible source from which the support needs can be met.
Many of our clients assume that alimony is only for the support of the ex-wife. This is not true. Neither is the assumption that an maintenance award is mandatory after a marriage of a certain duration or that it’s automatic. Alimony can be sought by either party in the proceeding, and there is no absolute entitlement to an award.
How complex is alimony?
Prior to January 2014, many people argued that the alimony statute provided little guidance and believed there was too much room for judicial determination, thus leading to inconsistencies in its application and a perception of unfairness. For example, in cases with similar facts, the amounts and duration would vary widely from one judicial district to the next. As such, Colorado Revised Statute § 14-10-114 was repealed and reenacted with amendments that include “advisory guidelines,” which are now considered the starting point when alimony is at issue. It is important to note that this is unlike child support, where the guidelines establish presumptions as the appropriate amount or duration of alimony.
The non-binding guidelines are only applicable to marriages more than 3 years but less than 20, and less than certain income requirements. To figure this out, you should sit down with a spreadsheet and the statute.
The formula is as follows: The court will take 40% of the higher income, less 50% of the lower income, make sure that amount doesn’t exceed 40% of the combined income, and make an award. The duration of the award is 31% of the marriage beginning at 36 months (e.g., 11 months) and increases by 1.17% each month thereafter. For example, in a 60-month marriage, there would be 21 months of alimony awarded (35% * 60 months = 21 months).
Hope so, because it gets even more confusing. Other considerations also go into this formula, including specific findings the court must make when awarding maintenance. If you don’t know what the court is looking for, you probably won’t be able to present the right evidence for consideration.
It’s complex stuff and like everything else, it plays into the entire case strategy. In alimony cases, to ensure you receive what is fair or pay only what is fair, an experienced attorney should be hired.
To learn more about alimony in Colorado, call us today at (303) 933-4529 or fill out our online contact form to speak with a divorce lawyer.
How is alimony awarded?
While the ways to determine spousal maintenance changed January 1, 2014, the following information is still relevant for cases where the court deviates from the statutory guidelines.
There are two phases of the divorce process in which maintenance can be ordered. The first phase is during the pendency of the divorce process, which is referred to as temporary alimony, and the second phase is after the divorce is final — permanent alimony. Permanent is a bit of a misnomer as it doesn’t necessarily mean that you’ll be paying alimony for the remainder of your life, but simply means that the obligation is part of the Permanent Final Orders or Agreement.
Temporary alimony can be calculated in two ways: the first method is called presumptive alimony, which is appropriate when the parties’ combined income is $75,000 or less. In those cases, there is a presumption in favor of an award of temporary alimony to be calculated by taking 40% of the higher income party’s income minus 50% of the lower income party’s income. If the remainder is zero or less than zero, then the presumption is that no alimony is appropriate. If the remainder is positive, then the positive amount is what the presumptive alimony would be.
Presumptive alimony can be overcome by evidence circumstances that would make its application unjust or inequitable. Temporary alimony in a situation where the parties’ combined income is higher than $75,000 is determined based on the same factors as permanent alimony described below.
The Court evaluates all relevant factors in determining if alimony is appropriate, including, but not limited, to:
- (a) The financial resources of the party seeking alimony, including marital property apportioned to such party, and the party’s ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
- (b) The time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment and that party’s future earning capacity;
- (c) The standard of living established during the marriage;
- (d) The duration of the marriage;
- (e) The age and the physical and emotional condition of the spouse seeking alimony; and
- (f) The ability of the spouse from whom alimony is sought to meet his or her needs while meeting those of the spouse seeking alimony.
If alimony is appropriate, it can be paid over time on a monthly basis or in lump sum. How long it’s paid for is based on a case-by-case basis and generally is a reflection of the length of the marriage, the amount of time needed to allow for the recipient spouse to find appropriate employment, or gain additional training or education to earn a higher income.
What if we have kids?
Alimony can be, by agreement of the parties, contractual and non-modifiable. However, if it’s ordered by the Court, it’s always subject to change based on circumstances so substantial as to make the award unconscionable.
When maintenance is awarded in cases where there are children, it is considered income for the party who receives it and then impacts the calculation of child support. Higher income for the party receiving child support results in lower child support.
Alimony also is taxable income to the recipient and tax deductible for the payor, whereas child support is non-taxable to the recipient and provides no tax benefit for the payor.
What if I’ve cheated, or my spouse has cheated?
Misconduct means different things to different people. To the non-lawyer, it could be infidelity, criminal actions (minor and severe), or emotional and psychological abuse.
Can alimony be altered based on marital misconduct?
Does a cheating spouse get alimony?
Do you have to pay more alimony if you cheated?
The answer is no. Except when it isn’t.
The statute clearly states that the amount and duration of alimony is to be considered “without regard to marital misconduct.” Indeed, this is consistent with the provisions throughout the domestic relations statutory scheme. It also applies to both parties. If your spouse is cheating on you, that alone is not grounds nor is it a factor in an alimony case.
What if your spouse was cheating on you and depleted the marital estate? What if someone goes to jail, and now has reduced living expenses? Colorado courts have held that marital misconduct may consider any economic circumstances resulting from a party’s marital misconduct. This includes depletion of the marital estate and reduction of his or her financial needs and ability to meet living expenses.
To be sure, although marital misconduct shouldn’t be completely discounted, this exception should not be used to attack the other party directly. Doing so will likely both waste time and detract from your case.