Alimony, or "spousal maintenance" as it's called in Colorado, is a payment that a higher-earning spouse makes to the other to ensure the lower-earning spouse isn’t destitute during or after the divorce process. Neither spouse is automatically entitled to support, and unless the parties agree, the court must evaluate and calculate the award depending on the facts of each case.
Colorado courts recognize several types of spousal maintenance during and after a divorce, including:
Temporary support, also called “pendente lite support,” is financial support from one spouse to the other during the divorce process. The court understands that when couples separate they often stop sharing their incomes.
If one spouse was the primary earner for the family, dividing incomes during the divorce could be catastrophic for the other spouse. The requesting spouse can ask the court to order the other to help financially until the judge finalizes the divorce.
Rehabilitative support is the most common type of maintenance in Colorado (and most other states.) The purpose of rehabilitative support is for the higher-earning spouse to provide financial assistance to the lower-earning spouse while that spouse acquires essential job skills or career training to enter into the workforce and eventually become self-supporting.
Rehabilitative support is common in marriages where one spouse left a career to raise a family. Typically, the court will order rehabilitative support for a specific period, which is usually long enough for the recipient to gain the skills necessary to get a job and become financially independent.
Reimbursement support is for cases where one spouse paid for the other spouse’s education or job training during the marriage. When couples are married, both spouses will benefit from the advancements in training, but after a divorce, only the recipient of the training will receive the benefits. If the court finds it appropriate, the judge will require the recipient of the funds to reimburse the other spouse through spousal maintenance payments.
Today, courts reserve permanent support for the most extreme divorce cases, where one spouse is unable to become financially independent due to advanced age, illness, disability, or if one spouse can’t gain employment skills to become self-supporting. Permanent alimony could continue indefinitely, but it’s rare. Typically, the court will set an end date for the support.
It’s a common misconception that only women will qualify for spousal maintenance. On the contrary, the court’s only concern is that the award of support is fair and equitable to both parties and that the requesting spouse (either party) can demonstrate a need for maintenance and that the other spouse can afford to pay.
The court typically only considers spousal maintenance appropriate in marriages lasting more than 3 years. In Colorado, the court also considers the following factors when determining eligibility for spousal maintenance:
After the court makes an initial finding that support is appropriate, the judge must then determine the amount and duration of maintenance.
Unlike other states, Colorado law offers judges a formula to determine the amount of support. The formula provides for a monthly payment to the lower earner of 40% of the higher earner’s monthly adjusted gross income minus 50% of the lower earner’s adjusted gross income.
Before applying the formula, the court will take into consideration whether either party makes or receives child support or spousal maintenance payments for children or an ex-spouse outside the current marriage. (C.R.S. §14-10-114(1)(a).)
For example, if the higher-earning spouse makes $10,000 per month, and the lower-earning spouse earns $2,000 per month, and neither makes nor receives payments from another marriage, the maintenance award would be $3,000 ($4,000, which is 40% of $10,000 minus $1,000, which is 50% of $2,000.)
Either spouse can request a deviation from the formula for unfairness, and a judge granting such request must specify the reasons for the decision. Both spouses can also agree to waive temporary maintenance, but such an agreement must include the reasons for the waiver. The court may reject a waiver agreement if the judge considers the agreement to be extremely unfair.
For marriages less than 3 years, the court can consider the above factors if the property division award in the divorce fails to produce an equitable result for the parties.
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. The court will 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.
Unless a couple has a written agreement not to seek changes to maintenance payments, a court can modify periodic payments due to a material change in circumstances. Absent an agreement to the contrary, maintenance generally terminates if the recipient remarries or either party dies.
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.
If you have questions about alimony, you should speak to an experienced divorce attorney in your area.