By: Michelle L. Searcy
Often, the longer the marriage, the longer the duration of the obligation to pay maintenance (alimony). As a result, one party in a divorce may still have many years of support to pay, even as he or she approaches retirement age. Unless that maintenance obligation is contractual and non-modifiable, the person owing a duty of support may have a basis to seek modification of the term and amount of maintenance. Since contractual, non-modifiable maintenance requires the parties to agree to that aspect of maintenance, any orders that do not clearly state this condition are modifiable.
Modifying maintenance places a heavy burden on the party seeking to modify to prove that a substantial and continuing change of circumstances has made the previous order unfair. If you have reached full retirement age and are, in fact, retiring in a manner where your retirement income will not be sufficient to pay maintenance and your living expenses, your chances of modifying or terminating maintenance are good. If you are retirement age, but still continuing to work full-time, you may find it more difficult to change maintenance.
Some professions allow for early retirement. In Colorado, as relates to retirement, a person owing a maintenance obligation shall not be considered underemployed if: (1) the decision was made in good faith without a motivation to decrease or eliminate maintenance, and (2) the decision was objectively reasonable based on the particular circumstances of the party seeking to change the obligation. These factors include, the person’s age, health and the usual practice in the industry of the obligor. This standard was established in the 2008 Colorado Court of Appeals case, In re Marriage of Swing, 194 P.3d 498. The standard also applies to a recipient of maintenance who takes an early retirement and seeks to increase maintenance. Swing established that modification cannot be denied solely on the basis that the otherwise objectively reasonable decision disadvantages the person receiving maintenance. Continue reading