Alimony, spousal support, maintenance…it has many terms but it means one thing: financial support provided by a higher-earning spouse to the other spouse after a divorce or legal separation.
For the record, it’s usually referred to as “maintenance” in Colorado.
When you get divorced here, alimony may or may not be due, depending on your financial circumstances as a couple and as individuals, as well as your length of marriage.
Spousal maintenance is a completely separate determination from child support, which is paid to support the upbringing and wellbeing of children from the marriage. The calculation of child support does take into account how much maintenance is paid by one spouse to the other (i.e. if maintenance is paid, child support will be less).
Assuming that alimony is due, you and your lawyers could discuss the matter with your spouse’s lawyers and agree on a sum to be paid. This is usually a monthly or bi-weekly payment but it can also be a lump sum paid upfront. When a lump sum is being considered, your attorney will need to address present value and tax implications. Maintenance can also be traded for assets/debts in the case.
Alternatively, in the case that the alimony issue is contested, you can let the court decide.
Factors determining the length of alimony
The amount and duration of an alimony award will depend on the specific circumstances of your case.
The court will consider the following factors in deciding whether alimony should be paid:
- Length of the marriage (there is generally no alimony if the marriage lasts less than three years)
- Combined annual adjusted income (standard guidelines apply if this is no more than $240,000)
- The higher-earning spouse’s monthly adjusted gross income
- The lower-earning spouse’s monthly adjusted gross income
- The ability of the lower-earning spouse to care for their own needs
- The ability of the higher-earning spouse to make payments
- Other financial resources available to each party
Depending on your circumstances, other factors and/or statutory provisions may also be considered.
The alimony agreement will stipulate the period of time for which payments apply.
Typically the maintenance award will grant a number of months for the amounts to be paid; very rarely is the maintenance term indefinite Typically, the longer the marriage, the longer the duration of maintenance. Note that the term of maintenance is negotiable, while the statute provides the courts a guideline, it is not so black and white.
Some examples include:
- For a marriage of five years: alimony is paid for 21 months (35 percent of the marriage duration)
- For a marriage of ten years: alimony is paid for 54 months (45 percent of the marriage duration)
Both the percentages and the real amounts of alimony increase with every year of marriage.
After 20 years of marriage, the alimony amount awarded will be at the discretion of the court but it will typically be at least 120 months (other than in exceptional circumstances) and it may be indefinite.
However, indefinite spousal maintenance has become less common in recent times and the Colorado courts usually only award this in exceptional circumstances such as the case of ill health or advanced age or inability to work.
Alimony is seen as something to be paid temporarily to help a lower-earning spouse adjust to their new life after divorce.
With the aid of a qualified divorce lawyer, a couple who separates amicably can create their own alimony agreement. This could be a permanent or temporary arrangement with the precise terms stipulated in the agreement.
Terminating spousal maintenance
If the court suspects that the lower-earning spouse may not have the income to adequately support their needs after the divorce, temporary spousal maintenance may be ordered as a temporary measure to help during the period of adjustment.
This period is likely to be longer if there are reasons why the individual will have difficulties in finding employment – and if the higher-earning spouse is in a financial position to be able to assist.
The precise terms of the award are at the judge’s discretion. The spouse’s need for maintenance and the higher-earning spouse’s ability to pay it are the chief considerations.
The reasons for the divorce (e.g. adultery or domestic violence or other fault based issues) do not enter into the judge’s consideration in this matter.
In the absence of a written agreement stating otherwise, the spousal maintenance agreement will terminate either at the end of the stated period or when the receiving spouse remarries or passes.
There is no requirement for the paying spouse to return to court if this happens. He or she can simply stop making alimony payments on the date that the receiving spouse gets remarried.
Also, note that if the supported spouse enters into a cohabitation arrangement, or even if a common law marriage is suspected,, this is not reason in itself to stop making maintenance payments.
The spouse making the payments would have to demonstrate a substantive change in circumstances to the court in order to legally stop payments.
An alimony arrangement also ends, of course, when either party passes away. Although often the parties will agree, or the court will order, a life insurance policy to secure maintenance in case the paying spouse passes away.
Modification of alimony
An alimony order usually continues as is until it is terminated but it may be modified by the judge at any time unless there is a written agreement that does not permit this.
A modification may be necessary if there is a substantial change in circumstances for one or both spouses.
Good examples where a modification might be warranted is when the paying spouse’s income increases or the needs of the receiving spouse decrease.
Modifications are easier if they are agreed between ex-spouses before approaching the court.
Otherwise, you will need to file a motion to modify or terminate support and demonstrate the substantive changes in circumstances that justify a change being made.