Maintenance Guidelines: Divorce 101
Beginning in January 2014 Colorado began to apply maintenance guidelines. Now many courts are requiring a notice of advisement regarding those guidelines and a maintenance worksheet be filed with each case. When the duration of the parties’ marriage is at least three years and the parties’ combined, annual adjusted gross income is not higher than two hundred forty thousand dollars the guideline directs that the court calculate 40% of the higher earning spouse’s income and subtract 50% of the lower earnings spouse’s income to arrive at the suggested amount of maintenance, but that amount is always capped at a total of 40% of the parties combined gross income. The length of time for which maintenance may be awarded is also suggested by a chart based on the length of the marriage determined in months. The shorter the marriage, the lower the number of months for which maintenance is suggested. A court may award maintenance in short-term marriages, including marriages of less than three years in duration, when, given the circumstances of the parties, the distribution of marital property is insufficient to achieve an equitable result but must make findings to support that award. For marriages of more than 20 years, the court may award maintenance for a specified term of years or for an indefinite term, but the court is directed no to award a maintenance term that is less than the maintenance term under the guidelines for a twenty-year marriage (half the length of the marriage) without making specific findings that support that reduced term of maintenance. The statute lists 11 factors and adds the “catch-all” phrase “and any other factor that the court deems relevant” which judges must consider in making a preliminary finding that the spouse seeking maintenance lacks 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. And is a phrase which requires the court to make both findings. Alternatively, if the court finds the spouse requesting maintenance is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home, (for example a severely disabled child or a child with significant and serious health issues) maintenance may still be awarded. Many judges, even those with many years of experience are applying the guidelines and have also applied those guidelines in cases where the parties’ combined gross income exceeded $240,000.00 a year.
Modification or Termination of Maintenance
The maintenance modification statutes have recently been amended. Not that long ago a person receiving maintenance could file a motion to modify their maintenance award that was limited by the court to a specific term even after that term had elapsed but since January 1, 2014, unless otherwise agreed in writing or expressly provided in the order establishing maintenance, the obligation to pay future maintenance is terminated upon the earlier of: (I) The death of either party; (II) The end of the maintenance term, unless a motion for modification is filed prior to the expiration of the term; (III) The remarriage of or the establishment of a civil union by the party receiving maintenance; or (IV) A court order terminating maintenance. Under subsection (b), new language was also added effective January 1, 2014 that gave a payor spouse whose income is reduced or terminated due to his or her retirement after reaching full retirement age is entitled to a rebuttable presumption that the retirement is in good faith. The statute defines “full retirement age” as the payor’s usual or ordinary retirement age when he or she would be eligible for full United States social security benefits, regardless of whether he or she is ineligible for social security benefits for some reason other than attaining full retirement age. “Full retirement age” does not mean “early retirement age” if early retirement is available to the payor spouse, and also does not mean “maximum benefit retirement age” if additional benefits are available as a result of delayed retirement. Will this added language make post decree modifications of maintenance more easy? This author believes it may for those persons reaching retirement age when the family would be expected to be living on a reduced level of income unless their financial resources and retirement assets were significant. However, don’t forget the statistics that show how much the lower wage earning spouses standard of living tends to be after a divorce, even with maintenance and remember the difficulty that lower wage earning spouse will face in building any significant retirement beyond what they may be awarded in the course of the decree.