5 Most Common Questions About Alimony ANSWERED

4.7.17

Navigating Colorado’s Alimony Laws – Putting More Money in Your pocket

Are you wondering if you’re eligible to receive alimony? Or maybe you’re worried that you may have to pay alimony to your ex-spouse for life? Unfortunately, Colorado’s alimony laws are not so cut and dry. While Colorado judges have guidelines in place to help standardize alimony payment lengths and amounts, there are numerous factors that still cast large grey areas for couples who are facing divorce. Luckily, we at Robinson & Henry have served over 700 family law clients. This gives R&H attorneys a true advantage in understanding the complexities of alimony, and the experience to make sure it goes right for you the first time. However strong or straightforward you think your case may be, we would urge you to contact us. We provide a free case assessment in which we will discuss your options and decide on the best course of action.

Why do the courts award alimony?

Courts award alimony (legally referred to in Colorado as “spousal maintenance”) to limit any unethical effects of the financial stresses that accompany divorce, legal separation or annulment proceedings on the non-or-lesser wage earner. Its aim is to find financial common ground between two parties, based on a couple’s past income. It is not meant as a punishment for divorce, rather it acts as a substitute for marital support. For example, it ensures that a spouse who may have been a stay-at-home parent, does not fall on public assistance while looking for work. Ultimately, it makes sure that each spouse has the ability to meet his or her basic financial needs.

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Importantly, it is separate from child support and thus alimony can only be ordered in a divorce case, not a custody case. Contrary to popular belief, there is no automatic right to alimony in Colorado, even if a marriage has lasted decades. A spouse must present evidence to a judge that she or he is in financial need.

Here are some FAQ’s on Alimony in Colorado:

Q. Does fault play a part?

A. Colorado is a “no-fault” state, which means that the court will not take into consideration who may have caused the divorce. Thus, it will have no effect on the ruling of alimony.

Q. Will I have to pay alimony for life?

A. The short answer is, most likely no. It has become very rare in Colorado for a judge to order life-long alimony, especially with the current standardization formula. When it is awarded, there is usually a presence of disability or injury in one party, which would affect their ability to retain long-term employment.

Q. Do only men pay alimony?

A. In a word – no. Alimony is legally gender blind. It takes into account both parties income, divides the highest and lowest income and find the “income gap”, which is one of the major factors in determining if alimony is to be awarded, then how much and for how long.

Q. Can I receive alimony from a common-law marriage?

A. Colorado is one of a number of states that recognizes common law marriage. Because it is recognized, it is possible for alimony to be awarded. However, it is proving the validity of the marriage that is the most difficult part. Factors such as income taxes, health insurance, bank accounts and other social factors play a part in the determination. It is all too common that those who think they have entered into a common-law marriage, actually have not and those who never thought they were, legally are.

Q. Is my alimony settlement final?

A. Maybe you have already been through this painful process and are wondering if your change in circumstance may have an effect on your alimony payments; or maybe you’re worried about the finality of your impending settlement? The answer is – you shouldn’t be, as no settlements are final and are subject to change or early termination. For example, changes in your ex-spouse’s relationship or work status, such as getting remarried or getting a job or promotion, may change the outcome of an alimony settlement. A good attorney can help navigate these nuances and get an early termination on a pre-existing alimony settlement or lessen the amount you may be required to pay.

Difference between temporary and permanent alimony?

The term permanent is a misnomer – as we have already discussed, life-long alimony is exceedingly rare. However, Colorado courts still use this term to describe alimony that is to be paid after the divorce proceedings, usually for a finite period of time. Colorado views alimony as a temporary rehabilitative measure, to maintain the lesser earning spouse’s quality of life while giving him or her the time and resources to improve his or her job prospects.

This may leave you wondering what the difference then is between permanent and temporary alimony. Let’s break it down:

Temporary alimony: Immediate alimony that is to be paid temporarily while the divorce proceedings are taking place. Temporary alimony may be replaced with nothing or it may be replaced by permanent alimony once the divorce is settled. It is calculated by income – couples who have a combined gross annual income of less than $75,000 adhere to the statutory formula set out by Colorado law. This formula equates to 40% of the highest earner’s gross monthly income, minus 50% of the lowest earner’s gross monthly income, which will be awarded to the lowest earner.

R&H Strategy: Our attorneys look at threshold determination of material property. If we find that the requesting spouse has sufficient resources, then no temporary alimony can be legally awarded.

While this formula provides some standard for Colorado courts, if evidence is provided that supports a different amount, the judge may disregard the formula altogether, creating another gray area for couples navigating the complexities of divorce.

This gray area expands for those who earn above the threshold, as Colorado has no set standard for temporary alimony at this income threshold. Instead, it is decided on a case by case basis and with such subjectivity within the court, it has been shown to range from 20% – 70% of the highest earners income.

How is Permanent alimony calculated?

This is where it gets tricky. Unlike child support, alimony is a complex topic and is subject to a wide array of factors such as:

  • Length of marriage
  • Length of time needed for the recipient to become self-sufficient
  • Ability of payee to pay and support him or herself
  • Income of both parties
  • Standard of living acquired during the marriage
  • Whether one party is caring for children
  • Age and health of both parties
  • Work and educational history of the recipient
  • Educational needs to re-enter workforce
  • Other financial circumstances of the parties (such as debt load or other financial obligations)

R&H strategy: While the court has to legally consider all the above factors, it has the discretion to decide how much importance to apply to any one factor. Our experienced attorneys fight to persuade the judge of the importance of those factors most crucial to your case, regardless of what side of an alimony settlement you may be on.

Due to such subjectivity in Colorado courtrooms, Colorado has developed a guideline to aid in the apparent lack of consistency in alimony outcomes. House bill 13-1058 was signed into law on May 2013 and takes effect for any divorce proceedings that begin after January 2014. At its most basic, the law introduces a formula for couple’s whose combined income is $240,000 or less and whose marriage duration is longer than three years. The formula is as follows:

Married 3 yrs = 11 months of alimony =31% length of marriage

Married 5 yrs = 21 months of alimony = 35% length of marriage

Married 10 yrs = 66 months of alimony = 45% length of marriage

Married 12.5 years or more = at least 50% length of marriage

Sounds good, right? Not too fast. It is important to note, this is a guideline/recommendation only. As long as the court calculates the formula, they have full discretion to disregard it altogether and instate any amount and length of alimony (or none at all) that they find “fair and equitable to both parties”.

To exemplify the extremes of judicial discretion that divorcees are facing – the Denver Post wrote about an annual luncheon, in which metro-area judges reviewed an alimony case. The judges reviewed the case facts and decided if any maintenance should be award. The results were staggering – when judges compared verdicts, they ranged from “no maintenance to something like $5000 a month for life”.

R&H Strategy: We can help you navigate judicial subjectivity. Our attorneys are local, and are familiar with the judges in each county. They will tailor their approach to best suit the personalities and views of each judge.

What does this mean for Colorado couples? It means it really comes down to the individual judge. Even with guidelines in place, there is so much room for judicial interpretation. If you’re hoping for a specific outcome, should it really come down to “luck of the draw”? No, it shouldn’t. That’s where an effective, knowledgeable attorney comes into play.

Most common problem and pitfalls

1. Reporting the incorrect income.

All too often, attorneys erroneously miscalculate and report the wrong income. Defining gross income in and of itself is an extremely difficult task and includes an array of unusual revenue that most people wouldn’t think to factor in or don’t even know they have, including but not limited to: wages, royalties, commissions, bonuses, severance pay, capital gains, dividends, pension payments, workers’ compensation, disability insurance, monetary gifts etc. Nuances such as – social security benefits that are received due to disability, count towards gross income but social security benefits received by a parent on behalf of a minor child as a result of the death or disability of a parent or stepparent do not count.

R&H strategy: It is important to note that for self-employed spouses – what the IRS defines as “ordinary and necessary” income is different than what is determined as gross income in divorce cases. R&H can help make sure you’re reporting the correct amount.

It is incredibility important for those seeking alimony to report the correct income, as this has a direct impact on what, if any alimony is to be received. Reporting the incorrect income means you might not get the correct amount of alimony, but it also means that further legal action could be taken against you should you report false information.

2. Dangers of Imputing Income

When a party is voluntarily unemployed or under-employed a Colorado court has the authority to determine an income amount that it believes a party is capable of making, not actually making. This is commonly referred to as “imputing income”. There are of course exemptions, such as parties who are physically/mentally incapacitated, those caring for a child under the age of 30 months, or someone who is/was incarcerated.

To impute income, a court must demonstrate that an individual is voluntarily un- or under-employed, which means that the party is willingly earning less than they are capable to avoid paying alimony. However, if the court determines that the party is seeking unemployment to say, pursue a vocational course or higher education, then it would show the party to be acting in the best interest of the supporting spouse and no income would be imputed.

R&H strategy: Grey area alert! Past appellate decisions have ruled that loss of employment due to drug addiction and reemployment at a lower wage does not alone constitute voluntary underemployment. In contrast, they have also found that a person who lost a job for drug use was found to be voluntarily unemployed due to refusal to accept suitable employment offers at a similar wage or failure to treat the addiction.

Case Study at Robinson and Henry

In closing, let us review a specific case study on how appropriate legal representation can make all the different in winning an alimony case. Note: The names of both the client and the opposing party have been changed to protect the privacy of both parties.

Caitlyn and Thomas were married for 13 years and had 2 children. Thomas was the primary earner, making almost double Caitlyn’s income. Among the assets gained during their marriage was the family home. Unfortunately, Caitlyn grew concerned for the safety of the children and overall well-being of the family, which led to their divorce.

“My biggest concern was making decisions that were the least impactful to my children. Having Robinson and Henry on my side I was able to have my children protected from this stressful time in my life. Robinson and Henry had myself and my children’s best interest at heart during my divorce process.” – Caitlyn

In contemplating divorce Caitlyn recognized that her primary concerns were financial and custodial. She retained the experienced family law attorneys at Robinson and Henry, P.C. Attorneys, James Townsend and Joseph Brown. Her attorneys immediately developed a legal strategy focused entirely on obtaining the best possible result for Caitlyn. The goal was to obtain the majority of parenting time, a substantial amount of spousal maintenance (alimony), considerable monthly child support payments to Caitlyn, and retention of the majority of the assets.

“Caitlyn came to us as most potential clients do – in the midst of a very difficult time in her life, as well as, in the lives of her children. We helped her through the divorce process, explaining each step in such a way that she could maintain focus on achieving a result which promised a better quality of life and future for her and her children. We made sure that she received a majority of the parenting time which also created monthly child support payments, kept the marital home, and divided the remaining assets and liabilities in a way that eased her transition to being a single Mom capable of supporting her family.” – James Townsend

The successful negotiating by Robinson & Henry through mediation resulted in Caitlyn being awarded 70% parenting time, possession of the marital home and the joint bank accounts. Thomas took 100% of the marital debt, pays 66% of the extracurricular and medical expenses for the children, as well as $2,100 a month in spousal maintenance and child support. Our attorneys also negotiated a communication and parenting plan that met the family’s needs.

“I was highly satisfied with the outcome of my divorce case. All decisions were made in order for my children and me to be successful and able to move on in a positive direction with our lives. “ – Caitlyn

Caitlyn and Thomas completed the dissolution of marriage process without either party having to appear in court. The divorce was finalized in only three months from start to finish.

We understand that divorce is a painful but sometimes necessary process and we urge you to contact us to ensure the swiftest and most beneficial outcome for you and your dependents. Please click here to get in touch with one of our alimony attorneys with offices in Denver, Castle Rock, and Colorado Springs to set up your free case assessment.

Download Our Free Ebook: 9 Tactics to Decrease Your Child Support and Spousal Maintenance Payments