Understanding and Calculating Alimony in Colorado

Alimony—called "spousal maintenance" in Colorado—is a payment that a higher-earning spouse makes to the other to ensure the lower-earning spouse can continue to meet their basic needs during or after a divorce. Neither spouse is automatically entitled to support, and unless the parties have entered into a settlement agreement regarding alimony, the court must calculate any award depending on the facts of each case.

Types of Spousal Maintenance in Colorado

There are two basic types of spousal maintenance in Colorado:

• temporary maintenance for a spouse during the divorce process, and
• long-term maintenance after the divorce is final.

Temporary Spousal Maintenance

Judges may order one spouse to pay temporary spousal maintenance while the divorce is pending. The judge will consider the guidelines for and factors relevant to longer-term maintenance, as well as any factors that are relevant for making an award in the short-term.

After the judge has determined the amount of temporary maintenance (as well as any temporary child support that might be necessary), the judge must consider the financial resources of each party in order to determine how family debts will be paid during the divorce. The judge will also decide how to temporarily allocate marital property. This means that on top of any temporary spousal maintenance award, a spouse might be ordered to contribute to, for example, house or car payments.

The judge has discretion to decide how long the temporary maintenance will last.

(Colo. Rev. Stat. § 14-10-114(4) (2022).)

Post-Divorce Spousal Maintenance

Colorado courts can order spousal maintenance to be paid after a divorce when one spouse needs support and the other has ability to pay support. (Colo. Rev. Stat. § 14-10-114(1)(a)(II) (2022).)

When Do Colorado Courts Award Spousal Maintenance?

Whenever a spouse requests spousal maintenance in Colorado, the court must make initial written or oral findings about:

• the amount of each party's gross income
• the marital property distributed to each party
• each party's financial resources, including the actual or potential income from separate or marital property
• reasonable financial need, and
• whether maintenance would be deductible for federal income tax purposes by the payor and taxable income to the recipients.

Only after making these initial findings can the court determine the amount and term of a spousal maintenance award—if any. (Colo. Rev. Stat. § 14-10-114(3)(a)(II) (2022).)

You might have noticed that there's no mention in this list of marital misconduct. That's because Colorado courts won't consider either spouse's "bad" behavior (such as committing adultery) when determining whether to award spousal maintenance. (Colo. Rev. Stat. § 14-10-114(2) (2022).)

How Is Spousal Maintenance Calculated in Colorado?

After a judge has determined that spousal maintenance is appropriate, their job is to arrive at a maintenance amount that is "fair and equitable to both parties." In order to do this, the judge must perform a three-pronged test.

1. Determine the amount and term of maintenance suggested by the statutory guidelines

Colorado law provides a set of suggested guidelines judges can use to arrive at a term and amount of support that is generally considered consistent and fair. The advisory guidelines take into account the:

• length of the marriage
• federal tax effects of the award, and
• combined monthly adjusted gross income of the parties.

(Colo. Rev. Stat. § 14-10-114(3)(b) (2022).)

Special Considerations for Short and Long Marriages

The Colorado spousal support maintenance chart addresses only marriages that lasted between three and 20 years. When a marriage lasted for an amount of time not on the chart, Colorado law states the following:

• For marriages that lasted under three years: The judge can award maintenance when, given the circumstances of the parties, distributing marital property isn't enough to provide an equitable result to the parties. The judge can use the same guidelines and factors used for longer marriages. (Colo. Rev. Stat. § 14-10-114(3)(h) (2022).)
• For marriages that lasted more than 20 years: The judge has discretion to award maintenance for a specified term of years or for an indefinite term. (Colo. Rev. Stat. § 14-10-114(3)(b)(II)(A) (2022).)

2. Consider the effects of certain factors listed in the maintenance statute

The judge must evaluate the suggestions of the guidelines in light of all relevant factors, including:

• the financial resources of the recipient spouse and the their ability to meet their own needs independently
• the financial resources of the payor spouse and their ability to meet their own reasonable needs while paying maintenance
• the lifestyle during the marriage
• the distribution of marital property
• both parties' income, employment, and employability
• whether one party has historically earned more or less than the other
• the duration of the marriage
• the amount of temporary maintenance and how long it lasted
• the age and health of the parties and their healthcare needs
• significant economic and noneconomic contribution (such as support provided while one spouse got an education) to the marriage
• whether there might be a need to award maintenance in the future
• whether the maintenance is deductible for federal tax purposes, and
• any other factor the court believes is relevant.

(Colo. Rev. Stat. § 14-10-114(3)(c) (2022).)

3. Evaluate the spouse seeking maintenance's ability to self-support

After performing the first two steps in the evaluation, the judge can award maintenance only after finding that the spouse seeking maintenance:

• lacks enough property to provide for their reasonable needs and is unable to support themselves through appropriate employment, or
• is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to seek employment outside the home.

(Colo. Rev. Stat. § 14-10-114(3)(d) (2022).)

Once the judge has arrived at a final written decision about spousal maintenance, it will be put in writing and issued as an enforceable order of the court.

How Long does Spousal Maintenance in Colorado Last?

Unless the parties agree in writing to a different arrangement, the obligation to pay spousal maintenance ends:

• when either party dies
• upon the end date noted in the spousal maintenance order
• when the party receiving maintenance remarries or enters into a civil union, or
• when a court enters an order terminating maintenance.

(Colo. Rev. Stat. § 14-10-122(2)(a) (2022).)

Can I Modify Colorado Spousal Maintenance?

Colorado courts can modify spousal maintenance orders when one of the parties can demonstrate changed circumstances so substantial and continuing that the terms of the original order are unfair. If a judge finds that circumstances have changed substantially enough, the modification will be effective as of the date the motion was filed, unless that date would cause undue hardship or substantial injustice. (Colo. Rev. Stat. § 14-10-122 (2022).)

To request a modification of or termination of maintenance, you must file with the court a Motion to Modify or Terminate Maintenance (Spousal/Partner Support) (be sure to read the instructions sheet).

How Is Colorado Spousal Maintenance Paid?

Parties can agree to the terms of support, including the method and frequency of payments. However, if the couple can't agree, the court will step in and decide. In most cases, periodic payments (usually monthly) are appropriate. Often, the order will require maintenance to be paid directly to the spouse, although the court can also issue an income withholding order, which directs the paying spouse's employer to withhold the award directly from the employee's paycheck.

If the paying spouse has the means, the court sometimes allows payment of support in a lump-sum with property or cash. The benefit to lump-sum payment is that there is no on-going obligation to pay monthly support, and the recipient doesn't have to worry about non-payment through the years.

If the paying spouse fails to meet maintenance obligations, the recipient can request assistance from the court to collect payments. The court takes non-payment of support very seriously, and a failure to abide by the court order can result in fines, court appearances, loss of licenses, bank account, and tax return intercepts, or jail time.

Read your maintenance order carefully to see if there are special instructions about how to pay or receive maintenance. If you have questions about the order, you can ask the court directly or inquire with the court clerk's office.

Spousal Maintenance and Taxes

In divorces finalized before December 31, 2018, periodic maintenance payments are taxable to the recipient and tax-deductible by the payer. However, the 2017 Tax Cuts and Jobs Act eliminated the tax deduction and reporting requirements for maintenance for any divorce finalized on or after January 1, 2019. That means that the Internal Revenue Service won't count spousal maintenance payments as income for the recipient, and the paying spouse won't get the deduction.

Recognizing the shift in federal tax law, Colorado's spousal maintenance statute and guidelines require judges to consider the taxability of any maintenance award when deciding its amount and duration.

If you're unsure how maintenance payments will affect your taxes, or if you have any other questions regarding Colorado spousal maintenance, speak with an experienced tax and divorce attorney near you.