What is Maintenance in a Divorce/Legal Separation?

The word alimony is a charged one and the term that most folks use or think of when talking about spousal support. In Colorado, we call it maintenance.

Much like child support, maintenance is figured in Colorado using a calculation. However, unlike child support, the maintenance guidelines can vary greatly. There are a lot of factors that can contribute to both the amount of maintenance as well as the duration of maintenance that is awarded in a divorce or legal separation. (Yes, someone can be ordered to pay maintenance in a legal separation matter.)

As with child support, there are several factors that can alter the amount of a maintenance award.

• Financial resources of the parties. The first thing that can be used in the evaluation of a maintenance award is the income brought in by the parties. This may include employment income as well as income-producing investment accounts, rental income, continuing gifts from family members or friends, and other monies that one or both parties regularly bring or brought into the marriage. An important note here is that in Colorado, if you have a forty-hour per week job and a side or part-time job, the latter income is not typically used in the calculation of support.

  
  

• Distribution of marital property. After the incomes are evaluated, the distributions of the marital estate for each party may be calculated . For example, if Wife makes less income than Husband, but she is receiving the rental property that will continue to be used as a rental property from the marital estate, her need for maintenance could be less because she is awarded with an income-producing asset.

  
  

• Actual or potential income of marital or separate property. As with above, the actual income may be evaluated for each party as well as the potential income, such as with the rental property example above. This may also include things such as degrees that one party has but is not currently using, receiving the marital home but having the ability to get a roommate (the rent received from a roommate is considered income for these calculation purposes), or a skillset that one party has that could generate income.

  
  

• Reasonable lifestyle and financial needs from the marriage. This factor is without a doubt the most misunderstood. Many folks believe that one spouse can simply allege a lofty and exuberant lifestyle in Court in an effort to be awarded a large amount of monthly support. This is not exactly how this works. This is simply one factor. For example, if Wife held a highly paying job throughout the marriage, Husband remained unemployed and the parties went to Europe every summer, this does not automatically entitle Husband to the financial equivalent of being able to continue to enjoy these vacations that he had grown accustomed to during the marriage. However, the Court could consider it when it appears that one party is going to leave the marriage being able to continue the European vacation and the other ends up needing to live out of their car for the conscionability factor.

  
  

• Income, employment and employability of the parties. If one party has traditionally not worked during the marriage, but they have their PhD, a teaching certificate, can give guitar lessons, or something like that, the Court can consider this when awarding maintenance. In family law cases it is not always the income that you earn, but your ability to earn an income. It is important to note, however, that mothers with children younger than thirty-six months are not usually subject to income imputation per statute.

  
  

• Historical earnings of the parties. Again, the Court can review the current, actual income of the parties as well as their potential to earn income. They may also look at the income history of the parties. If one party stopped working at the onset of the marriage but was a professor at a college for twenty years before the marriage took place, that could be considered.

  
  

• Duration of marriage. The duration of maintenance is generally half the duration of the marriage so long as the marriage is longer than thirty-six months in duration. Any marriage less than thirty-six months is usually not eligible for an award of maintenance. Any marriage over twenty years, lifetime maintenance may be awarded.

• Reasonable ability for each party to independently financially support themselves. Similar to above, if one party has traditionally been financially dependent on the other party due to employability, disability, age, mental health, or being a stay-at-home parent, the Court may consider that.

  
  

• Age and health status of each party. If one party is nearing retirement or Medicaid age; has diminishing physical or mental health; or is diagnosed with a terminal illness, the Court can consider this when awarding maintenance as it factors into their ability to earn an income.

  
  

• Need and duration for education for lower-earning spouse. If one of the parties has not traditionally worked, but has plans to go to school and get a degree or certificate that can help them earn income in the future, that duration and cost of the education may be factored in.

  
  

• Amount of temporary maintenance and number of payments. If one party is able and/or elects to pay maintenance through the duration of the case, they often get credited for those payments. For example, if a Judge awards Husband $100 maintenance for sixty months, but Wife has paid $100 per month for the nine months that the case has been pending, the maintenance award may be changed to $100 per month for fifty-one months instead.

  
  

• Significant economic and non-economic contributions to the marriage. Say one party owned a house when the parties started dating and the other party made several renovations themselves to the home during the marriage. This may factor into an award of maintenance. If one party stays home to care for the children until they are in full-time school, their efforts may factor in. If one party gets inheritance during the marriage (which unless and until co-mingled into marital funds is typically categorized as separate property) and uses that inheritance to buy a marital vehicle, that may be considered.

  
  

• Any other relevant factors.

There are two kinds of maintenance -- non-modifiable maintenance and modifiable maintenance. Their names make their purposes fairly self-explanatory. If someone opts for modifiable maintenance, then this permits the Court to retain jurisdiction to hear the matter in the future should anything statutorily relevant change in the future. This could be one spouse retiring, losing their job, enduring a significant health matter, or going back to school. Should you opt for non-modifiable maintenance, the maintenance amount and duration cannot and does not change. If the recipient of the support wins the Powerball, the payor does not pay less. If the payor of the support wins the Powerball, the recipient does not get to try for a higher or longer maintenance reward.

Unlike with child support, maintenance can be waived by the party who may be the recipient of the financial support. There could be several reasons for coming to this decision and you should always consult with an attorney if this is something you are considering. Once maintenance is waived, you are restricting the Court on their authority and jurisdiction in the matter should you later change your mind.