"Spousal support", also called "spousal maintenance" is the same thing as alimony. There is no difference – other than different words. Spousal maintenance is always a consideration in every divorce, but it is also optional and up to the Judge as to whether it is granted or not. The amount of spousal maintenance in Colorado and the duration of spousal maintenance must be determined by the Court. There are guidelines and calculations that the Court will use to decide if it will award spousal maintenance, but the process the Court must use requires more than just a calculation based on income.
There are also considerations of "temporary" spousal maintenance--which is awarded while the divorce is pending, and "permanent" spousal maintenance awarded when the divorce is made final. "Permanent'' spousal maintenance does not mean forever. A duration or term of permanent spousal maintenance will be set by the Court.
The question anyone going through a divorce must ask is: will spousal maintenance be awarded in my case?
According to Colorado law, if the duration of the parties' marriage is at least three years and the parties' combined, annual adjusted gross income does not exceed $240,000, spousal maintenance may be awarded. For permanent spousal maintenance in Colorado, it is a rather complex process, though, whether the Court will award or not award spousal maintenance and then how much and for how long also has to be determined. By law, the Court must initially consider these factors enumerated in the statute 14-10-114, Colorado Revised Statues:
The amount of each party's gross income;
The marital property is apportioned to each party;
The financial resources of each party, including but not limited to the actual or potential income from separate or marital property;
Reasonable financial need as established during the marriage; and
Whether maintenance awarded pursuant to this section would be deductible for federal income tax purposes by the payor and taxable income to the recipient.
Once the Court has considered these factors, it must then look to:
The guideline amount and term of maintenance set forth in [the statute], if applicable, is based upon the duration of the marriage and the combined gross incomes of the parties;
The factors relating to the amount and term of maintenance set forth in [the statute]; and
Whether the party seeking maintenance has met the requirement for a maintenance award pursuant to [the statute].
The statute referred to, here, is 14-10-114, Colorado Revised Statutes.
The statute provides a calculation whereby 40% of the combined income of the Parties minus the lower income is the guideline amount of spousal support that a Court will generally consider awarding. However, since spousal maintenance in Colorado is no longer taxable to the recipient nor tax-deductible to the payor, if the combined monthly income is $10,000 or less, 80% of the 40% calculation is what the Court will consider awarding. If the combined monthly income is greater than $10,000 but less than $20,000, 75% of the 40% calculation will be used by the Court. If the combined monthly income is $20,000 or more, there is no statutory calculation, but the Court can use other factors to consider whether to award spousal maintenance.
This means once the initial 40% combined monthly income minus the lower wage is calculated, if the amount is zero or less, then the guideline recommends NO spousal maintenance. If it is a positive number, then the Court will apply 80% or 75% to the number, depending upon the combined monthly income, and that is the guideline amount the Court will consider awarding.
It sounds complicated--and it is--but the automatic calculators at https://www.courts.state.co.us/Forms (click on "maintenance calculator" or "Download the calculator here") can do it for you if you know the monthly gross income of both Parties.
The Duration/Term of Spousal Maintenance in Colorado
But that is not the end of the Court's considerations. In addition to the math, the Court needs to establish a duration or "term" of the spousal maintenance. To get a "guideline" term for spousal maintenance in Colorado, the number of months of marriage (must be at least 36 months) is used. The guideline terms are set out in a lengthy chart in the statute.
Generally, for marriages of at least 36 months but less than 150 months (12 1/2 years) between 30% and 50% of the length of the marriage is the guideline term. If the marriage is 150 months or more, the term is 50% of the marriage. So, for example, a 13-year and 7-month marriage (163 months) will have a guideline term of 81 1/2 months. This is about 6.79 years.
But even after arriving at an amount of spousal maintenance and the term of the spousal maintenance, the Court cannot award spousal maintenance unless it finds 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 or 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.
Once the Court has considered these factors, it will either award spousal maintenance, adjust the amount and duration, or not award spousal maintenance. The Party seeking spousal maintenance must show a need, and the Party that would be paying the spousal maintenance must have the ability to pay.
Temporary spousal maintenance can be awarded to help defray the costs each Party incurs while the divorce is pending, and they are living separately and apart. Some Judges limit temporary spousal maintenance to marriages that exceed 36 months. Others allow for all divorces to possibly have an award of temporary spousal maintenance.
To determine an amount of temporary spousal maintenance, the Court will look at the guidelines for the amount and duration but will mostly look at each party's living expenses and bills they must pay. Temporary spousal maintenance expires when the divorce is final and "permanent" spousal maintenance may or may not be ordered until the divorce is final.
All matters of spousal maintenance in Colorado are the most heavily litigated issues. No one wants to pay it – especially when going through a divorce, it is difficult to pay spousal maintenance to a soon-to-be-ex-spouse. Your divorce attorney should discuss spousal maintenance with you and describe the above-mentioned factors and present options you likely have (such as paying debt rather than spousal maintenance, awarding more property to decrease the needs of the other Party, etc.)
For more information regarding spousal maintenance in Colorado, call us at The Law Office of Jeanne M. Wilson and Associates P.C at (719) 625-8886