Advisory guidelines for spousal maintenance in Colorado Courts

Colorado legislators have responded to the national alimony reform movement.

Spousal maintenance, once known as alimony, is the payment of monetary support from one spouse to another spouse after a divorce or legal separation.

It goes without saying that spousal maintenance can have a serious impact on the future lifestyle and financial health of either party after a divorce. Therefore, it is extremely important for Courts to properly analyze and determine whether maintenance should be awarded; and, if awarded, in what amount and for how long.

In 2013, concerned by an increasing trend in inconsistent maintenance awards among the state's district courts, the Colorado legislature enacted advisory maintenance guidelines in order to promote more consistency, fairness and equity statewide in maintenance awards.

The advisory guidelines, as detailed more fully below, instruct Courts to take into account both the length of the marriage in question, as well as the combined incomes of the parties when endeavoring to determine a potential maintenance award.

However, the advisory guideline amount is only a "starting point" for a Court when determining whether a maintenance award is appropriate; what the amount of a maintenance award should be; and, the duration, or "term", of a maintenance award.

Stated another way, the guideline amount does not create a presumptive amount or term of maintenance that must be adopted by the Court. Rather, when determining whether maintenance is appropriate, or calculating the amount to award, a judge in Colorado still retains the ultimate discretion to determine whether an award of maintenance, and the amount of such an award, is "fair and equitable" under the unique factual circumstances of each case and/or whether it is appropriate to deviate up or down from the guideline amount.

It is worth noting, however, that one factor which is not considered by Courts in Colorado is marital misconduct, as Colorado is a "no-fault" state.

Guidance for state judges

If maintenance is requested by a party in a divorce proceeding, the Colorado maintenance statute requires the judge to engage in a complex and lengthy analysis aimed at determining whether the party seeking maintenance actually requires maintenance; and, whether the party from whom maintenance is sought can afford to provide the maintenance in the amount and duration requested.

First, a judge in Colorado must determine:

  • Each party's gross income;
  • How the marital property should be divided;
  • Each party's independent financial resources (including income from property); and,
  • The reasonable financial need of the party requesting maintenance.

Second, a judge determines whether maintenance is appropriate, and what amount and term would be fair and equitable, by considering the following:

  • The guideline amount and term (if the guidelines apply to the marriage);
  • All relevant factors, including, but not limited to, 12 factors enumerated in the statute itself (such as financial resources, marital lifestyle, property division, length of marriage, age and health of the parties, and several others); and,
  • If the potential recipient possesses sufficient property to provide for his or her needs and is unable to support him/herself through work (or because child custody responsibility would make employment inappropriate).

The advisory guideline calculation

If maintenance is awarded after the Court has addressed the foundational issues above, the court will look to the advisory guidelines if two things are true:

  • The parties were married for at least three years; and,
  • The parties' combined annual adjusted gross income is not more than $240,000.

The new guidelines enacted by the legislature are based upon a complex formula for Courts to utilize when calculating the guideline amount of a maintenance award.

The formula for calculating the guideline amount of an award asks judges to calculate 40% of the higher income party's monthly adjusted gross income and subtract from that 50% of the lower income party's monthly adjusted gross income. The difference will be the guideline amount, unless this amount, when added to the recipient's gross income, is more than 40% of the parties' combined monthly adjusted gross income.

Unlike the amount of maintenance, the guideline duration of a maintenance award, or "term", is set out in a table in the statute itself. The table includes marriages ranging from three years to up to 20 years. The table calculates a term by applying a different percentage value to different marriage durations. For example, the guideline term of maintenance for a three-year, or 36-month, marriage would be 11 months (after the guideline percentage applicable to a three-year marriage, or 31%, is applied) (36 x .31).

If a marital term is less than three years, or over 20, the term will not be assigned a percentage or addressed in the table specifically, but, there is guidance provided to Court s under the guidelines for how to determine whether maintenance is appropriate for marriages under three years and over 20 years.

Advisory Guideline and negotiations

Despite the foregoing, a couple seeking a divorce may decide that they do not want a judge to determine the maintenance award for them. If so, the parties can choose to negotiate an agreement regarding maintenance. However, even when negotiating maintenance informally, the advisory guidelines may be helpful and may provide a reasonable starting point for the parties to consider. Additionally, maintenance agreements can be fixed and non-modifiable, or, maintenance agreements can fluctuate in amount over time.

The foregoing notwithstanding, because of the complexity of the calculations, and the long-term ramifications that an incorrect calculation could have, if you are facing a divorce, and maintenance is an issue for either party, one should seek the advice and counsel of an experienced family law attorney before making any decisions regarding a maintenance amount or term. To not do so could drastically impact either your responsibility to pay, or the amount you will receive, over time.

The attorneys of Susan Fuller & Associates, P.C., with offices in Parker and Colorado Springs, serve clients all along the Front Range and assist clients with spousal maintenance calculations and negotiations and all other divorce and family law issues.