Alimony- Generally

Alimony is when one party provides continued financial support to the other party after the divorce to assist in maintaining their reasonable and necessary financial needs.  In Colorado Alimony is actually called “Maintenance.”  If you think about it, this is actually a better descriptor as the payments are for support or general financial maintenance.  But because only lawyers really care about the distinction we will refer to it as Alimony.  But just know, it’s really called maintenance.   It is important to note at the outset that spousal maintenance changed January 1, 2014.  The following information is still however relevant for cases where the court deviates from the statutory guidelines.

There are two phases of the divorce process in which alimony 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 is referred to as permanent alimony. Permanent is a bit of a misnomer as it doesn’t necessarily mean that you will be paying alimony for the remainder of your life, but simply means that the alimony 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 than the positive amount is what the presumptive alimony would be.

Presumptive alimony can be overcome by evidence circumstances that would make application of the presumptive alimony 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, is 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 alimony will be 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.

Alimony can be, by agreement of the parties, contractual and non-modifiable ,which means it cannot be changed. However, alimony that is ordered by the Court is always modifiable and subject to change based on a change in circumstances so substantial as to make the alimony award unconscionable.

When alimony is awarded in cases where there are children it is considered income for the party who receives it and as a result it impacts the calculation of child support. Higher income for the party receiving child support results in lower child support.

Another consideration when considering alimony situations and its impact on child support is that alimony 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.

To learn more about Alimony and Maintenance generally click here.  To learn more about Alimony in Colorado call us at 303-933-4529 to speak with a divorce lawyer.