Maintenance is spousal support. In fault states, it is called “alimony”. Colorado is considered a “no fault” state, which means that marital misconduct or fault is not part of the dissolution process.
Maintenance is a potential issue in any Dissolution of Marriage case. The “general assembly hereby finds that the economic lives of spouses are frequently closely intertwined in marriage and that it is often impossible to later segregate the respective decisions and contributions of the spouses.” C.R.S. 14-10-114(1).
Colorado has two types of maintenance. Temporary maintenance is maintenance that is in existence while a Dissolution of Marriage case is pending. The legislature recognizes that “it is generally appropriate to utilize the period of temporary orders as a period of adjustment during which the marital arrangements of the parties may be recognized through a temporary blending of the parties’ incomes.” C.R.S. 14-10-114(1). Temporary maintenance is calculated by formula for parties whose combined gross annual income is $75,000 or less. C.R.S. 14-10-114(2)(a). If the parties combined gross annual income is $75,000 or more, the Court will apply certain factors (discussed below).
Maintenance for purposes of orders is tied to property division and earning capacity. Before a spouse qualifies for an award of maintenance the spouse must first meet the “threshold test” found in the statute of lacking “sufficient property including marital property apportioned to him or her, to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside of the home.”
Only if this threshold test is met can the Court order maintenance. There are many factors the Court is going to consider in deciding the amount and duration of any maintenance award. In 2013, the Colorado legislature passed a revised maintenance statute that provided “advisory guidelines” which now go up to $360,000 combined income. The statute is clear that these guidelines are not presumptive but are, instead designed to create a “statutory framework” that would help parties and courts resolve maintenance cases with more statewide consistency.
Maintenance entered at the time of Permanent Orders (the end of a Dissolution case) is determined by several factors. These factors are:
“(a) The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party's ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party's future earning capacity;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.”
Whether or not a court will award maintenance and the amount and duration of that maintenance is left up to a Judge’s discretion unless it is agreed upon by the parties in the Dissolution of Marriage case. This means that if the parties are unable to agree and they decide to let a Judge decide the issue, the Judge will apply the law to the parties’ situation and make a determination of whether maintenance should be awarded, the amount of maintenance that should be awarded and the length of time that maintenance should be awarded.
Maintenance can also be a tax planning tool because, if done correctly, it is a deduction against gross income for the payor. Settlement arguments that provide for maintenance have to be drafted with care to avoid adverse tax consequences. The after tax impact of various levels of maintenance are often times presented to a judge as part of arguing for different levels of maintenance.