Spousal support, called maintenance in Colorado, helps ease the financial burden on a spouse when divorce means a significant loss of income. However, Colorado courts do not automatically award maintenance in every divorce case. Instead, each court considers several factors to determine whether maintenance is appropriate and, if so, how much support and what type best fits each situation.
Threshold for Award
Spousal support is not intended to punish the paying spouse for causing a divorce. Rather, Colorado courts award maintenance when one spouse cannot take care of herself financially, but even then the court might not award it. First, the court must make a threshold decision that there is not enough property to care for the reasonable needs of the receiving spouse, even after marital property is divided, and conclude she is unable to support herself. Additionally, the paying spouse must have the ability to pay maintenance while still supporting himself.
Once the threshold requirements are met, the court must determine how much maintenance is appropriate. The type and amount are up to the discretion of the court, which will use certain factors to make these determinations, including the length of the marriage, the financial resources of the proposed recipient spouse, the ages and health of the spouses and the standard of living established during the period of the marriage. For example, if one spouse is close to retirement age and is entitled to pension or retirement benefits in her own name, a judge may award lower maintenance payments since that spouse will soon be able to support herself with her retirement benefits. Judges use their discretion when balancing these factors to reach a decision, so a maintenance award depends largely on the judge issuing the award.
Types of Maintenance
Colorado courts can award temporary maintenance while the divorce is pending, and Colorado law contains a specific formula to determine temporary awards when the couple’s combined income is less than $75,000 a year. Once the divorce is final, the court can award permanent maintenance that ends only when the recipient spouse remarries or dies. Or the court can award maintenance for a specific term, such as when maintenance is intended to help a spouse gain education or training to improve her employment prospects or increase her earning capacity.
When circumstances change after the divorce, either spouse can go back to court to ask for a modification of maintenance -- unless the divorce decree restricts the court’s modification authority. To begin the modification process, one spouse typically must file a petition with the court that issued the original order and serve his ex-spouse with a copy. If the ex-spouse does not agree to the modification, the court may schedule a hearing to hear both sides. The court will modify the maintenance award only if there has been a “substantial and continuing change” of circumstances such that the earlier award is no longer fair. A court cannot modify an earlier award simply because it would now award something different.