Alimony has its historical origins in the assumption that a woman who left her husband would be unable to support herself. However, if a wife divorced her husband without cause, or if she was an adulterer or engaged in other conduct that made her “at fault,” the wife would not be able to collect maintenance.
When no-fault divorce laws developed in the 1970s and 1980s, alimony concepts changed in many ways. For example, alimony is now referred to as “maintenance” in many states. Furthermore, maintenance is determined without regard to marital misconduct in many states, including Colorado.
Breaking through the myths surrounding maintenance can help alleviate tensions concerning maintenance, help the parties reach an agreement, or help prepare for a hearing.
Myth: Only husbands have to pay maintenance.
Reality: A husband or a wife can be ordered to pay child support. Generally, the spouse earning the higher income may be ordered to pay maintenance to the spouse earning the lower income.
Myth: Divorcing parents can pick the maintenance amount they think is fair for one spouse to pay to the other.
Reality: If the parties’ combined income is less than $75,000 per year, the amount of maintenance to be paid in pre-divorce proceedings is determined by a formula (see below). The amount and duration of maintenance to be paid after entry of a divorce decree is determined by the Court on a case-by-case basis. However, the parties can reach a written, signed agreement concerning maintenance and submit it to the Court for review. The Court may accept or reject the written agreement.
The temporary maintenance formula sets a maintenance amount that is equal to forty percent of the higher income party’s monthly adjusted gross income minus fifty percent of the lower income party’s monthly adjusted gross income. If the remainder of such calculation is the number zero or a negative number, the presumption is that temporary maintenance will not be awarded. If the remainder of such calculation is more than zero, that amount will be the amount of the monthly temporary maintenance.
If the parties’ combined income exceeds $75,000 per year, the court may grant a temporary maintenance order only if it finds that (1) 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 (2) the spouse seeking maintenance is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
Myth: Maintenance is not tax deductible.
Reality: Maintenance payments are tax deductible for the paying party and taxable as income for the receiving party. When calculating monthly income and living expenses, a party receiving maintenance should remember that taxes will be owed on the maintenance on a quarterly or annual basis.
Myth: If a spouse receives maintenance at the end of the case, maintenance will continue until one ex-spouse or the other dies.
Reality: If the parties don’t agree on maintenance and have the Court decide the issue, the Court will determine the duration of the maintenance. The maintenance may be ordered for a lump sum or in period payments (usually monthly) for a time determined to be appropriate by the Court. The duration could be open-ended, for a fixed period of time, or subject to review upon the happening of certain future events. If the parties settle the maintenance issues, they can determine the duration of the maintenance award, subject to the Court’s approval.
Myth: Maintenance cannot be waived.
Reality: If the parties enter into a written, signed Separation Agreement, the parties can agree in the Separation Agreement that one or both parties waive the right to receive maintenance. Once the right to receive maintenance is waived, it cannot be re-asserted, absent the divorce decree being re-opened for fraud, mutual mistake, or very limited additional reasons.
Myth: If a paying parent remarries, maintenance should be increased because the paying parent now has additional household income.
Reality: A new spouse’s income usually has no effect on the paying parent’s maintenance obligation. It is the spouse who got divorced, not his or her new spouse, who has to pay maintenance.
Myth: If a paying parent remarried, maintenance should be reduced because the paying parent now has an additional person to support.
Reality: The existence of a new spouse is not generally a reason to reduce maintenance paid to a former spouse. Generally, maintenance can be modified when there is a substantial and continuing change in circumstances that makes the original award of maintenance unfair. Voluntary changes in circumstances of a paying spouse are usually not considered a circumstance that makes the original award of maintenance unfair.
Myth: Quitting a job to take one with less pay will reduce the amount of maintenance owed.
Reality: If a parent is voluntarily unemployed or underemployed, maintenance will be calculated based on the parent’s potential income. If an ex-spouse is intentionally unemployed or underemployed with the intention of shirking his or her maintenance obligation, the Court will probably impute income to that parent, and not reduce the amount of maintenance owed.
Myth: Courts are not concerned with how the paying spouse will support himself or herself while he or she is paying maintenance.
Reality: The law requires the Court to consider the paying spouse’s ability to support himself or herself when determining the amount and duration of maintenance. Courts are also required to consider the ages of the parties, the length of the marriage, the physical and mental condition of the parties, and other factors.
By understanding the law concerning maintenance, divorcing couples can make intelligent choices concerning settlement and trial strategy.