An Alternative Approach to Colorado’s Maintenance Formula

There are many ways to analyze spousal maintenance. Divorce lawyers and parties will often focus on the approach that works to their advantage. Obviously one way is to focus exclusively on the income of each party and the formulas under Colorado’s “maintenance guidelines.” But that’s not the only way, and the guidelines are technically inapplicable when the combined income for your spouse and you is over $240,00 per year.

Here is an alternative approach to spousal maintenance that can be helpful whether you are the party seeking spousal maintenance or the party defending against it. Frequently, parties and attorneys throw out an arbitrary number for spousal maintenance. They give little thought to why they are asking for that number other than it is big (if they are seeking maintenance) or small (if they are defending against it).

This alternative approach to spousal maintenance has proved successful because we can show the “why” behind our proposed spousal maintenance amount. If a party can get the judge to understand the logic behind his or her request, the judge will be more likely to rule in your favor.

To start, we will rely on the Sworn Financial Statement (“SFS”) for both parties. Once we have the SFSs, we ask and answer three simple questions:

1. What is my net monthly income? How much money do you take home each paycheck after taxes and deductions? If you are a salaried employee, this answer should be easy to find using your most recent paystubs.
   
   If you are not a salaried employee and your income varies from month to month (or year to year), your best bet is to look at your last three years’ W2s or tax returns. Unless a major change has occurred in the present year, it is generally acceptable to average your last two or three years of income to estimate your income for the current year.
   
2. What are my monthly expenses? How much money do you have going out each month? Make sure you are not including expenses that are taken out of your paycheck, otherwise you may be double-dipping.
   
   Also, make sure you are listing all of your expenses, but that you aren’t inflating your expenses. Remember, you may need to defend these amounts in Court, so overestimating your expenses may end up hurting your case.
   
   However, it is okay to include expenses you do not currently pay for but anticipate paying for in the near future. Finally, make sure you are annualizing the expenses that fluctuate each month. In other words, you add up the fluctuating expenses and then divide the yearly total by 12 months.
   
3. What is my monthly shortfall or excess? How much money do you have left over each month after you have paid your bills? If your expenses are greater than income, it is possible for this number to be negative. In fact, if you are the spouse seeking support, chances are your number is negative.
   

Once you have answered these questions for yourself, the next step is to run the same exercise for the other party. When looking at the other party’s income, you should consider whether they are hiding anything.

Also, when determining the other party’s expenses, we make sure they are not “double-dipping” or inflating their expenses. This happens frequently, so it is important to be on the lookout for expenses you know for a fact are not accurate.

If you are seeking spousal support, you want to request an amount within the range of what you need (monthly shortfall) and what the other party can afford to pay (monthly excess).

Conversely, if you are defending against spousal maintenance, you either want to prove that the other party can support themselves (they have no monthly shortfall) or propose an amount within the range of what you can afford to pay (monthly excess). Obviously, if you do not have any monthly excess, you should make the argument that you cannot afford to pay spousal support regardless of the other parties’ need.

(Note: the above is based on a similar blog post previously published by Modern Law.)