What Qualifies Someone For Spousal Support?

May 26, 2021

Understanding Spousal Support in Colorado Divorce

Spousal support, also referred to as alimony or spousal maintenance, is likely to come into play in divorces involving spouses who earn different income levels. Every state upholds unique laws pertaining to spousal support. If you have any concerns about paying or receiving alimony as part of your Colorado divorce, it is a good idea to understand the state’s laws concerning this element of divorce, so you know what to expect in your case.

At the Johnson Law Group, our team routinely assists clients in complex divorce cases, many of which involve spousal support of some type. We want to provide clients and prospective clients with as much information as possible, so they can approach their divorce cases with clarity and greater confidence.

What Qualifies Someone for Spousal Support?

According to Colorado state law, spousal support allows a divorced person to maintain a lifestyle similar to what they experienced while married. If one spouse earns more income than the other by a significant margin, spousal support effectively makes up this difference. It provides the lower-earning spouse with the means to maintain a relatively equivalent lifestyle.

Some divorcing couples will negotiate their own spousal support arrangements; others will leave this decision up to a judge. Still, others form prenuptial contracts before marrying that dictate the terms for spousal support if the couple’s divorces.

Negotiating Spousal Support Privately

Many couples divorcing throughout the United States prefer to avoid the stress, expense, and time required of divorce litigation. Alternative dispute resolution such as divorce mediation typically offers them the best method of resolving their divorces privately and efficiently. The only actual prerequisite for divorce mediation is that both spouses must agree to participate. If one spouse is entirely unwilling to negotiate and demands a divorce trial, litigation is unavoidable. However, it is usually in the best interests of both spouses to take advantage of the benefits of private mediation. Even if they cannot agree on every aspect of their divorce or reach firm arrangements on some aspects of their divorce, they can still handle many facets of their divorce, and both will save time and money on the process.

When divorcing spouses negotiate spousal support privately in divorce mediation, they can typically reach a more mutually agreeable arrangement than what a judge would decide. When a judge rules on spousal support, they will typically adhere to the statute as closely as possible, with little room for personal factors influencing their decision. If you decide to pursue divorce mediation with your spouse, the two of you can potentially negotiate spousal support terms that suit both of you.

Spousal Support in a Prenuptial Contract

Some couples create prenuptial contracts for financial security before marrying. While the suggestion of a prenuptial contract may not make a romantic notion, the fact remains that a prenuptial contract can help a marrying couple have difficult conversations early in their marriage and grow closer together through creating their prenuptial agreement. While these contracts are more common among wealthy couples and marrying spouses who have financial obligations to children from previous marriages, any marrying couple can take advantage of the benefits that prenuptial contracts can provide.

Most prenuptial contracts will include postnuptial provisions that serve as a blueprint for divorce proceedings should the couple decide to end their marriage in the future. The contract will likely have terms for spousal support, and some may even include specific conditions about qualification for spousal support. For example, a postnuptial clause may state that they forfeit their claim to alimony if one spouse commits adultery during the marriage. It is also possible for a marrying couple to devise a spousal support clause that dictates a minimum amount of alimony in the event of divorce, or the couple may agree that no alimony will be awarded to either if they end their marriage.

One of the most important factors when it comes to prenuptial contracts in divorce is enforceability. Colorado family court judges will not enforce any prenuptial contract deemed “unconscionable” or any prenuptial contract that includes illegal, one-sided, or unfair terms. If you are unsure whether your prenuptial contract will guarantee alimony or prevent you from paying it to your spouse when you divorce, it is best to consult a family law attorney about your concerns.

How Do Judges Determine Spousal Support in Colorado?

If a divorcing couple does not privately mediate their divorce or if they leave their spousal support determination up to a judge, the judge must assess several factors when it comes to determining spousal support, including:

  • The income of each spouse. If one spouse earns more than the other by a substantial margin, the higher-earning spouse will likely owe alimony to the lower-earning spouse.
  • The age and health of each spouse. Suppose a spouse is elderly, unable to work, or has a medical condition that prevents them from earning enough to meet their basic living expenses. In that case, the judge will likely award them alimony.
  • The length of time the marriage lasted. Alimony determinations often hinge on the length of the marriage. Colorado judges typically use a sliding scale to determine how long the receiving spouse can expect alimony payments from the paying spouse. The judge will likely use a percentage that increases as the length of the marriage increases. For example, if a couple was only married for two years, the receiving spouse may only expect alimony for several months. If they were married for more than 10 years, the judge might award alimony for half the length of the marriage. While state law generally caps the percentage at 50 percent of the length of the marriage, judges often award permanent alimony if the marriage lasted 20 years or longer.
  • Each spouse’s behavior before and during divorce proceedings. A spouse might preclude themselves from receiving alimony if they engaged in any deliberately destructive behavior before or during divorce proceedings. For example, if one spouse would typically expect to receive alimony but intentionally ran up credit card debt in the other spouse’s name while the two were still married, this may constitute “wasting,” and the judge may rule against them receiving alimony due to their behavior.
  • Contributions each spouse made toward the marriage. If one spouse sacrificed their career or gave up job opportunities to be a homemaker and raise children, a judge would likely consider factors like these as justification for awarding that spouse alimony. Judges would also consider factors such as one spouse putting the other through college or supporting the other spouse in creating a new business.
  • The property division determination between the spouses. Colorado is an equitable distribution state, meaning that when a judge decides property division for a divorcing couple, the judge will lean toward the most permanent and equitable, but not necessarily equal, distribution of marital property. For example, a judge may award the lower-earning spouse a more significant share of marital property, and the higher-earning spouse would not have to worry about paying alimony. If the higher-earning spouse wants a greater share of the marital property, they should expect to pay alimony.

When a judge determines alimony, they decide how long the receiving spouse can expect alimony payments and how much the paying spouse must include in each payment. Colorado state law upholds a standard formula for calculating alimony shared with several other states. Typically, a judge determines alimony payment amounts by subtracting 50% of the lower-earning spouse’s monthly income from 40% of the higher-earning spouse’s monthly income. For example, if the higher-earning spouse makes $5,000 per month and the lower-earning spouse makes $2,000 per month, the calculation would be $2,000 - $1,000 for a total of $1,000 in monthly alimony obligation for the higher-earning spouse.

Is It Possible to Change My Alimony Terms?

Colorado allows for a modification process if a divorce order becomes untenable due to factors beyond either spouse’s control. As long as the divorce decree does not explicitly state that the alimony terms cannot be changed, it is technically possible to change them. However, doing so requires proving that recent events have rendered the current terms unfair. For example, suppose you receive alimony and find out that your ex-spouse recently earned a promotion and pay increase. In that case, this will not automatically entitle you to a higher alimony payment because the change has not made the current terms unfair.

If you pay alimony to your ex and lose your job, this may sound like a justification to cancel your alimony obligation. However, a judge may not see it the same way. If you lost your job due to poor performance or you quit of your own volition, it is unlikely that a judge will allow you to stop making alimony payments. If you suffered an injury that resulted in a permanent disability that left you unable to work, this would be more likely to qualify as justification to cancel your alimony obligation.

What Is Non-Modifiable Alimony?

All divorcing spouses need to be wary of any divorce terms regarding “non-modifiable alimony.” As the name suggests, this would involve any alimony agreement that cannot be modified in the future. If you agree to non-modifiable alimony as either a payer or a recipient, you cannot petition the court to change your alimony terms for any reason, even if something beyond your control has influenced your financial situation. However, non-modifiable alimony can be advantageous in some cases. For example, if you pay alimony under non-modifiable terms, your ex cannot later petition the court for more money if you receive pay increases or win the lottery. If you receive maintenance, your ex is required to continue paying you even if they lose their job or would otherwise have the ability to petition for reduced or terminated alimony.

What Are Terminating Actions?

Unless you and your spouse have agreed to non-modifiable spousal support, there are some actions that will effectively terminate your alimony agreement. The basic terminating actions are the death of the receiving spouse or the end of the spousal support term. For example, if a judge requires you to pay alimony for five years, your obligation terminates once these five years conclude. Other terminating actions include remarriage or cohabitation of the receiving spouse if the cohabitation significantly reduces the receiving spouse’s living expenses.

If you receive alimony, it is important to carefully consider any decision to remarry or move in with a new partner. Once you decide to engage in either of these potentially terminating actions, your alimony will end, even if the new relationship does not work out. For example, if your divorce order states that you will receive alimony for three years and you marry a new partner after one year, your ex would no longer owe you alimony. If you and your new partner decide to divorce after only a few months, your prior ex-spouse would not have to resume paying you alimony even though the initial three-year term has not expired.

Some states uphold cohabitation as a terminating action, but this is not necessarily the case in Colorado. Cohabitation with a new partner will only constitute a terminating action if the receiving spouse moves in with a new partner and their living expenses significantly reduce because of this, or if their new relationship qualifies as a common-law marriage.

Why You Need Legal Counsel for Spousal Support

Alimony tends to be one of the most contentious issues in a divorce. If you expect to pay alimony, it is natural to want to ensure you are only paying the minimum amount required under Colorado state law. If you are hoping to receive alimony, it is understandable to want to maximize the amount of spousal support you receive each month. One of the best things you can do to navigate this tricky situation from either side of the table is to hire an experienced divorce attorney.

If you want professional legal guidance as you navigate your divorce and want to ensure your spousal support terms are fair and reasonable, contact the Johnson Law Group and schedule a consultation with an experienced Colorado family law attorney. We will help you prepare for your divorce proceedings and approach your spousal support determination with confidence.

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Written by Family Law Attorney Myles S. Johnson
Divorce doesn’t have to be dramatic. For the litigants, losing your spouse is significant enough. But you can choose the way it affects your daily life. The only guarantee I can give is that the feeling that you have right now will not be the feeling you end with. This is a season in your life, and it must be approached that way.
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