In the legal sense, alimony is defined as a husband’s or wife’s court ordered provisions paid after a separation or divorce. You may hear it being called “maintenance,” and it ensures that basic financial needs of a disadvantaged spouse are taken care of after a divorce is finalized. This is something that you will only have to deal with if there is no other way your spouse can support their own needs.
More often than not, those going through a divorce may have the impression that the ex-wife gets all the monies. This is not correct, and alimony may not even be mandatory after a marriage. There are many factors that determine if alimony is necessary, and later on in this article, we will discuss a few of those. Your outcome will depend upon its factors and your specific situation.
Alimony can be sought by either of the two parties involved in the divorce, and there is no guarantee that any award will be granted to either side.
What are the Complexities of Alimony?
Many people were, or still are, under the impression that the alimony statute of Colorado provided minimal guidance and there was too much leeway for judicial determination, which led to inconsistency. Amounts and duration varied from district to district, so Colorado law changed.
Today, alimony laws are different and are now enforced with amendments with “advisory guidelines,” which are considered the first step in determining alimony. One should note that alimony is not the same as child support, which is handled in a different way.
The non-binding guidelines are only relevant when considering marriages more than three years but less than 20 years, and less than certain income amounts. To get an accurate calculation, speak with your counsel directly. We can still provide the formula for your own information:
The court will take 40% of the higher income minus 50% of the lesser income, ensuring that amount does not go over 40% of the combined income, and then make an award. The duration of this award is 31% of the marriage starting at 36 months, and then increases by 1.17% each month afterward.
This formula is confusing if one does not work with it regularly, so it is best to talk to an expert. It can also get even more complex. Other considerations are factored into the execution of this formula, including the specific findings the court must create when awarding maintenance monies. If you are not sure what the court is seeking, you probably will not be able to present the necessary evidence for alimony award consideration.
How Long do I Have to Pay Alimony in Colorado?
When the marriage lasted at least three years, but not longer than 20, the statutory guidelines are used to determine the duration of the alimony funds. A table within the statute that sets forth the length of time of the award exists and is based on the number of months of marriage. For marriages that lasted longer than 20 years, the statute indicates the court can either award alimony for a duration equivalent with 20 years of marriage, or even award it indefinitely.
How Can I Get Alimony?
There are two parts of the divorce process in which alimony may be ordered. First is during the pending phase of the divorce, which is known as temporary alimony. The second phase is when the divorce is made final, or permanent alimony. Permanent is somewhat inaccurate, as you will not be paying alimony for the rest of your life; rather, it means the need to pay the sums are part of your Permanent Final Orders or divorce decree.
The temporary alimony award can be calculated in two methods: First is known as presumptive alimony, which is used when parties’ combined incomes total $75K or less. In these cases, there is a presumption that favors a temporary alimony amount calculated by taking 40% of the higher income party’s income minus 50% of the lower income party’s income.
If the result is zero, or less than zero, the determination is that no alimony amount is appropriate. If the remainder is a positive number, the positive amount is what the presumptive alimony award would be.
Presumptive alimony can be overcome by evidence that would make its awarding unjust or inequal. Temporary alimony in a situation where combined income of both parties is above $75K is determined based upon the same factors as permanent alimony.
Is Alimony Appropriate?
You can use these factors to see if alimony would be appropriate for your situation. These include, but are not limited to:
- The gross income of each party
- The marital property that is distributed to each of the parties
- The financial resources of each individual party
- Reasonable financial needs as established while the marriage was still intact
- How long the marriage lasted
- The ability of the paying spouse to meet his or her living needs while meeting the needs of their ex-spouse in terms of alimony
- The time needed for the ex-spouse to get job training or education that will enable them to be self sufficient
If it is determined that alimony is appropriate, then it can be paid monthly over time or in one large lump sum. How long the duration of the award is given is evaluated on a case by case basis. It is based on such factors as length of the marriage and the time needed for the spouse to obtain education or job training that will lead to self-sufficiency.
What About Adultery?
Marital misconduct is a definition unique to each individual person. To a non-lawyer, this may mean infidelity or cheating, criminal actions whether minor or serious, or abuse of any kinds like psychological and physical methods.
Common questions about adultery and alimony include:
- Can maintenance be changed based upon marital misconduct?
- Does a spouse who committed infidelity still get alimony?
- Do you pay more in alimony if you were unfaithful?
The answer to these questions is simply no – not all the time. The statute of Colorado states that the amount of money and duration of alimony awards are to be considered without factoring in marital misconduct. This is consistent with the provisions found in the domestic relations statutory scheme and applies to both parties. If your spouse is committing adultery, that alone is not enough in a case involving alimony.
However, what if your spouse depleted your marital estate as a result of their adultery? What if one spouse is incarcerated, and now has reduced expenses associated with living? Colorado courts take all these factors into consideration when determining alimony. So, adultery can be a factor, but also may NOT be one. Speak with your legal team for your best answer.
What Determines if You are Eligible for Alimony?
If a couple’s combined AGI, or annual gross income, is $75K or less, Colorado courts use the formula discussed earlier that will determine your eligibility for temporary alimony. The formula provides for a monthly payout to the lower earner of 40% of the higher earning spouse’s monthly adjusted gross income, minus 50% of the lower earner’s monthly AGI. Before the formula is applied, the court will take away from each spouse’s income any sort of pre-existing spousal support payments being made, as well as any child support payments that either makes for children outside the current marriage.
You can request a deviation from the formula if you feel it is unfair, and a judge who grants such a request must be sure to specify the reasoning for the decision. Both spouses can agree to waive the temporary maintenance for the spouse earning a lower income. However, such an agreement must be sure to include the reasoning for the waiver, as a waiver agreement may be rejected by a judge if the judge believes the agreement to be heavily unfair.
A court may also order temporary alimony for the lower earning spouse for a couple whose combined gross income is over $75,000. They can also order permanent alimony for a lower earning spouse of a couple at any income level. The court, however, must find that the spouse seeking the maintenance:
- Has a lack of sufficient property, and this includes the award of any marital property, that would help provide reasonable needs.
- Lacks the ability to become self-sufficient through gainful employment or is the custodial parent of a child whose conditions or circumstances make it a better decision for the spouse to waylay seeking employment.
A court that comes up with these findings can then go about awarding alimony in whatever amount is fair for whatever period of time. Colorado divorce courts consider only factors that pertain to the needs of one spouse and the ability of the other spouse to pay for both parties’ needs.
Some relevant factor examples include:
- The financial resources of the spouse who seeks the alimony payments, including any awards of marital property/child support
- The earning capacity of the spouse seeking maintenance in the future, and any time that is needed for education and training to attain this gainful employment
- The lifestyle or standard of living that was established during the course of the marriage
- The duration or length of the marriage
- The age, physical condition, and emotional condition of the spouse seeking alimony
- The ability of the paying spouse to meet the needs of both themselves and their ex
Fault is NOT a consideration.
How Can I Terminate Alimony? What About Modifying it?
Termination of alimony can only be done if a couple has a written agreement to seek changes to maintenance payments. A court can make modifications to periodic payments due to a material change in circumstances. Maintenance will, in most situations, end if the other party gets remarried.
Support that is set for a specific time frame from the date of the divorce or the separation will automatically terminate if the receiving spouse enters into a civil union or remarries. If, however, you and your ex have signed off on an agreement that states otherwise, the support will continue uninterrupted. It is important to remember that a civil union or remarriage will only terminate alimony that is made in payments periodically, such as ones that take place every month or every year. This does not have an impact on property transfer obligations or lump sum alimony payments.
If the spouse receiving the alimony is now living with another person in a romantic relationship, this does not mean that the support payments must come to an end. You must show the courts that he or she is living with another partner and that the relationship is equal to that of a common-law marriage. You must show that your spouse’s living expenses have been reduced as a result. For instance, if your spouse lives without the need to pay rent or mortgage because of this new relationship, the court may view that as enough reduction in living costs to justify terminating the rest of the support.
What About Taxes?
New tax reforms for 2019 will change the way that alimony is calculated, so it is best to consult with your legal team directly for all the numbers that pertain to your situation. After January 1, 2019, alimony will no longer be a deductible on your taxes to the payor, or the one who is paying the support payments. They are thought to have a higher tax rate. It is taxable to the payee, or the one receiving the support payments, who is thought to have a lower rate of taxation. The spouse paying the alimony will pay all of the taxes, which is a means of creating more tax revenue.
Calculating alimony in Colorado is difficult, but your legal team will have the answers you seek. Use our guide to get your feet wet, then consult with your counsel to get all questions answered.