Parties in a divorce case should pay close attention to resolving issues concerning whether maintenance will continue after remarriage. The economic lives of spouses are frequently closely intertwined in marriage. It is often impossible to later segregate the respective decisions and contributions of the spouses. This legislative declaration is the basis for “maintenance” (also referred to as “spousal support” or “alimony”) awards in Colorado.
Maintenance has its roots in the concept that spouses have a duty to support each other during the marriage and after the marriage, when a spouse has not remarried. Historically before the 20th century, divorce was rare. When a husband and wife did divorce, they often stayed together in the same physical location, and the husband was required to continue to support the wife. This was a part of the basis for the historical development of maintenance.
Because maintenance is based on the concept of continuing support arising out of a marriage, it could seem counter-intuitive to have an ex-husband paying maintenance to an ex-wife, after she remarries another man (maintenance can of course also be paid by an ex-wife to an ex-husband). Colorado law generally requires that maintenance will terminate when a spouse marries again, following a divorce. According to C.R.S. Section 14-10-122(1), “[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.”
In contested divorce cases, the court has the power to decide whether maintenance should survive the remarriage of the spouse who is receiving maintenance. Usually, the court’s decision will clearly state whether maintenance will terminate upon the remarriage of the party receiving maintenance. However, when the parties are negotiating their own maintenance terms in a Separation Agreement, careful drafting is required to address this issue.
Ideally, husbands and wives who want maintenance to continue after the remarriage of the spouse receiving maintenance should include Separation Agreement terms such as “this maintenance award shall not terminate upon the remarriage of the [husband] [wife] who is receiving the maintenance payments.” However, many Separation Agreement terms are drafted by the parties without the help of lawyers, or with the help of lawyers who did not clearly articulate the parties’ wishes. Even where the Separation Agreement does not specifically say that maintenance terminates on remarriage, Colorado courts have ruled that the maintenance does not terminate on remarriage if the Separation Agreement terms concerning maintenance indicate that the maintenance terms are non-modifiable.
Significant sums of money may be at stake for the parties surrounding maintenance termination issues. Careful drafting and attorney review can help save thousands of dollars in the future, by minimizing disputes concerning maintenance termination and remarriage. Before signing a Separation Agreement, pay attention to the details concerning maintenance termination after remarriage of the spouse receiving maintenance.