COLORADO ALIMONY AND DIVORCE: POTENTIAL 2014 CHANGES (Part 1)

February 10, 2013

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As experienced divorce attorneys in Denver, the lawyers at Plog & Stein, P.C, have seen, over the years, various changes to the law related to many aspects of both divorce and custody statute. From time to time, the state legislature, with some input from the bar association (not always listened to), decides to make changes to the existing body of work that encompasses what I will call the family law statutes. This has included simple changes, such as adjusted child support guideline amounts to reflect changes in economic trends, or changes to the timing of the filing of certain pleadings or documents in a court case.

However, from time to time, there are also sweeping, and radical changes which ultimately get enacted into law. Pending before the legislature is a bill, which if passed, stands to radically change the way courts assess maintenance, or alimony, in Colorado divorce cases. Again, at this stage, it is only a proposal. That being said, the rumors among learned and seasoned family law attorneys, and some judges, is that the bill will likely be passed, with the new provisions taking effect for Colorado divorce cases filed after January 1, 2014. The specific bill is House Bill 13-1058, and must still meet both state senate and the Governor's approval before becoming law. Again, the prevailing rumor right now is that this will happen. The question then becomes how does this affect you, the litigant in a Colorado divorce?

Alimony, or maintenance, stems from C.R.S. 14-10-114 and is essentially court ordered spousal support to be paid from one spouse to another. Factors going into an award of maintenance include incomes, financial needs, length of the marriage, time for one spouse to attain financial self sufficiency, etc. Maintenance in divorce cases has always been somewhat of a gray area or subject. Unlike child support, there has been no guideline or formula. Thus, how much maintenance and for how long has always been up to a judge's discretion. Discretion can vary from judge to judge and court to court.

This posting is not intended to weigh in on whether the proposed changes are good or bad, but rather to identify the significant proposals and potential effects upon the practice of divorce and alimony law under Colorado statute. From a cursory reading of the Bill, it appears that the significant changes coming are as follows:

1. GUIDELINE AMOUNT: As with child support, the proposed new legislation sets forth a formula related to how much alimony should be paid, and a time table for suggested appropriate lengths for the payment of it. A cursory read of the bill seems to indicate that the temporary maintenance formula set forth in C.R.S. 14-10-115 regarding 40% of the higher earner's income minus 50% of the lower earner's income will be applied to awarding maintenance at a final or "permanent orders" hearing. However, unlike the child support statute, the Bill indicates that the guidelines are not mandatory and are not a "presumption." At the same time, the Bill seems to indicate that a court must consider the guidelines and set forth specific reasons for its ruling should it differ from such. Language set forth in the draft indicates that primary purposes of the proposed guidelines are to enhance "predicatability" in alimony cases, which in theory will then promote settlement.

As the duration of a maintenance award is something often litigated, with little guidance other than opining how a specific judge might rule, or general rules of thumb, the proposed Bill also sets for a table indicating apprpriate time frames. For example, in a marriage of 3 years, alimony would be paid for 11 months, or 31% of the length of the marriage. For a marriage of 13 years, maintenance would be paid for 80 months, or 51% of the length of the marriage. The potential use of a guideline amount and duration is novel approach that will take Colorado family law attorneys some time to wade through in terms of the mathematical calculations involved. Furthermore, with multiple courts throughout the Denver metropolitan area, an alimony award and application of the guidelines may lead to one result in a Denver divorce and a differing result in a Douglas County divorce. The guidelines set forth in the bill would be applicable to marriage of 3 years or longer, though statute would still indicate that a court can award alimony in marriages shorter than 3 years. The guidline would also only be applicable to families with a combined annual gross income of $240,000 or less. From an attorney perspective, it will be an interesting experiment to see whether our metro-area courts follow the guidelines and how strictly, or whether alimony will still be a gray area. The answer will lie, perhaps, in how much discretion courts or judges want to give up and how easy they find the new guidelines to be in terms of potentially lessening their docket loads.

2. TERMINATION OR SUSPENSION OF MAINTENANCE: Under existing statue related to Colorado alimony, unless agreed upon otherwise contractually by the parties, maintenance terminates upon the remarriage of the recipient or the death of either party. The Bill seeks to introduce new requirements which indicate that an award of alimony can be suspended if the recipient co-habitates with another individual for a period of 6 months or more. The bill goes further by setting forth specific factors that would lead a court to determine co-habitation has occurred. In essence, the payor of maintenance will now be able to motion the court to at least suspend maintenance during a period of co-habitation. The suspension would not toll or extend the duration for paying alimony set forth in the original award. It would merely mean that during the suspension time, the recipient does not receive his or her monthly check. Likewise, the bill indicates that alimony can be reinstated once and if the co-habitation ends. This provision will likely bring great comfort to the payors of the world, as we often hear frustration from clients regarding their ex-spouses, though not marrying, entering into live-in relationships in which they are likely being supported by, or financially assisted by, a new significant other. A new avenue of litigation will certainly now be opened related to whether a person is co-habitating. Factors for otherwise terminating maintenance would stay the same as set forth in the current version of C.R.S. 14-10-114.

As the title of this posting is qualified as "Part 1," there will be additional aspects of proposed House Bill 13-1058 discussed in Part 2, and perhaps Part 3, if needed. For now, the law remains the same. For those thinking of filing for divorce in Colorado, and struggling with concerns over potential alimony or maintenance, it might make sense to get your case filed prior to January 1, 2014. For those assuming they are entitled to maintenance, if might make sense to wait, if possible, depending upon your circumstances and the potential new guidelines. Just some legal food for thought.