The Art of Determining Spousal Maintenance

As we said before, the guidelines in Colorado are “advisory” and supposed to be one factor among several in determining maintenance. They are not legally binding and the court can deviate by increasing or decreasing the amount or duration. Moreover, as stated previously, when the combined income exceeds $240,000 per year, the formulaic approach is not supposed to apply.

Then what? Well, this is where the art (and history that we previously covered) of spousal maintenance comes into play.

Generally speaking, maintenance awards are getting smaller and shorter. This is great news for the paying spouse, but not good news for the receiving spouse. It also means that parties need to give the judge a clear, rational, and reasonable request or proposal for the proper award of maintenance. This approach isn’t limited to a judge. In negotiating spousal maintenance, following this step-by-step approach will help you determine 1) how much support the recipient actually needs, and 2) how much can the paying spouse afford to pay?

A Colorado court must analyze the following thirteen factors when determining the amount and duration of a spousal maintenance award:

1. The financial resources of the recipient spouse, including the actual or potential income from separate or marital property or any other source and the ability of the recipient spouse to meet his or her needs independently;
2. The financial resources of the payor spouse, including the actual or potential income from separate or marital property or any other source and the ability of the payor spouse to meet his or her reasonable needs while paying maintenance;
3. The lifestyle during the marriage;
4. The distribution of marital property, including whether additional marital property may be awarded to reduce or alleviate the need for maintenance;
5. Both parties’ income, employment, and employability, obtainable through reasonable diligence and additional training or education, if necessary, and any necessary reduction in employment due to the needs of an unemancipated child of the marriage or the circumstances of the parties;
6. Whether one party has historically earned higher or lower income than the income reflected at the time of permanent orders and the duration and consistency of income from overtime or secondary employment;
7. The duration of the marriage;
8. The amount of temporary maintenance and the number of months that temporary maintenance was paid to the recipient spouse;
9. The age and health of the parties, including consideration of significant health care needs or uninsured or unreimbursed health care expenses;
10. Significant economic or noneconomic contribution to the marriage or to the economic, educational, or occupational advancement of a party, including but not limited to completing an education or job training, payment by one spouse of the other spouse’s separate debts, or enhancement of the other spouse’s personal or real property;
11. Whether the circumstances of the parties at the time of permanent orders warrant the award of a nominal amount of maintenance in order to preserve a claim of maintenance in the future;
12. Whether the maintenance is deductible for federal income tax purposes by the payor and taxable income to the recipient, and any adjustments to the amount of maintenance to equitably allocate the tax burden between the parties; and
13. Any other factor that the court deems relevant.

The key thing to remember in formulating your spousal maintenance strategy is that the judge is tasked with coming up with a number for spousal maintenance. Many people are intimidated by spousal maintenance arguments because the judge has broad discretion and factors identified in the statute are seemingly more qualitative than quantitation.

We have developed a strategic approach to determining spousal maintenance that can be used during settlement negotiations and, if necessary, at trial. The advantage of our approach is the reliability and weight of evidence supporting the requested/proposed amount.
We’ll get into our strategic and proven approach next.