Will Spousal Maintenance Even be Awarded?

Every divorcing client asks us: how much will I pay/receive in alimony? There’s an emotional element to paying spousal maintenance. Whether that is right or wrong, the first step is to ask whether there will even be spousal maintenance.

The “Threshold Test”

After addressing the preliminary factors we covered in our last post, there are two important questions that need to be answered:

  1. Does the requesting spouse lack sufficient property, including marital property, to provide for his or her reasonable needs?
  2. Is the requesting party unable to provide for their reasonable needs through appropriate employment, or is the party the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home?

This two-prong approach is known as the “threshold test” for spousal maintenance. The answer needs to be “no” to both prongs before spousal maintenance is addressed further.

Sufficient Property?

For example, if a party receives $5M in investible assets in the divorce, they would receive $200,000 per year in passive income if the investments generate a 4% rate of return. That passive income most likely will be sufficient to provide for the spouse’s reasonable needs. Therefore, he or she would not be eligible for spousal maintenance. This is why the first step in a divorce is to divide property.

Appropriate Employment

Alternatively, if a spouse receives insufficient property to generate passive income, he or she may be able to be meet his or her reasonable needs because they earn enough through his or her employment.

Of course, what is “reasonable,” “sufficient,” “enough,” or “appropriate” are terms that can be debated and argued between parties and attorneys.

Assuming that the situation passes the “threshold test,” the next step is to decide the amount(s) and duration. There are different ways to analyze spousal maintenance.

The Spousal Maintenance Guidelines

The first and most obvious way is to consider Colorado’s “guidelines.” In order to understand the guidelines and how they work, you should know the history of the law on maintenance and how we got to a place where formulas were even a consideration.

Find Out More

To discuss whether the threshold test may or may not apply to your situation, contact one of our divorce lawyers at Kalamaya | Goscha. We are a Colorado law firm founded by Ryan Kalamaya and Amy Goscha. Our team specializes in divorce, child custody, and family law. Kalamaya | Goscha has law offices in Edwards, Aspen, Glenwood Springs, Denver & Boulder. To speak to an attorney call (970) 315-2365.

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