Awards of Spousal "Maintenance" in Divorce or Separation Cases

Posted By Matthew Clawson || 8-Jul-2015

Colorado has adopted the “Uniform Dissolution of Marriage Act”, as have many other states, so that courts in Colorado have some specific guidance in making decisions about spousal maintenance.

A court may order that “spousal maintenance” be paid to a spouse that needs support by the other spouse who has the ability to pay support. A court may award maintenance only if it finds that the "seeker" has little to no property (marital or not) to provide for their accepted standard of living, and is unable to support themselves through regular employment, or if the requesting spouse is the primary custodian of a child whose health make it unreasonable for them to leave their home for lengths at a time, such as for a job. Maintenance can be ordered to be paid while the dissolution proceedings are pending (“temporary maintenance”) or as part of the permanent orders of dissolution, or both.

Awarded maintenance must be a total sum that persists for a set duration that is beneficial or non-damaging to both parties. It may be ordered regardless of marital “misconduct.” It is available in all marital dissolution (divorce) actions, as well as in cases of separation – court-controlled or otherwise. Before a court orders spousal maintenance, it will look at the amount of each party’s gross income, the relative division of marital property, and the monetary requirements of the spouse who requests maintenance.

Maintenance may be ordered by the court if a marriage is of at least 3 years in duration and if the parties’ collective yearly adjusted gross income does not exceed either $240,000 or the maximum limitations of the schedule of child support. In any event, the requesting spouse cannot receive more than 40% of the parties’ combined monthly adjusted gross income. In marriages of less than 20 years duration, maintenance will be ordered to be paid for a defined period of time. For example, if a marriage was 3 years in duration, absent extraordinary circumstances, the court will award maintenance payments for no more than 11 months after the dissolution is final. On the other hand, when the duration of the parties’ marriage exceeds 20 years, the court may ward maintenance for a certain amount of years—or for a term that never ends unless acted upon by other influences.

In deciding the amount and length of spousal maintenance, the court is directed to weigh any pertanent aspects of the marriage and divorce, including: the finances of the requesting spouse, the income of the payor spouse, standard of living during the marriage, whether marital property could be distributed to eliminate some need for maintenance, the employment or employment opportunities of both parties, and the age and health of the parties.

The “payor spouse” cannot avoid the obligation of supporting the requesting spouse just by voluntarily avoiding employment, or engaging in employment that is obviously beneath the spouse’s education and qualifications. On the other hand, the payor spouse will not be considered to be “underemployed” if the employment is temporary and is reasonably intended to result in a higher income within the foreseeable future, or the “under” employment is a “good faith career choice” or if the payor spouse is enrolled in an educational program that is reasonably intended to result in a degree or certification within a reasonable period of time that will result in a higher income.

The law of spousal maintenance is complex and can be confusing, or even contradictory. Spousal maintenance issues can be emotionally charged, making agreement difficult. If spousal maintenance is a potential part of a divorce proceeding, it is good to have the expertise of experienced family law attorneys, such as those at Clawson & Clawson LLP on your side. Attorneys experienced in spousal maintenance issues advise their clients as to all the options available in a marital dissolution action and will make sure that the maintenance awards are, indeed, “fair and equitable.”

Categories: Divorce, Family Law

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