Nobody said divorce would be easy. It’s even harder when you’re required to subsidize your ex-spouse’s new life with a portion of your earnings. Whatever they call it — alimony, maintenance, spousal support — your options can feel limited for the duration of payments. Here’s the thing: What if you need that money more than your ex does? How does the system address this? Let’s talk about three ways to decrease alimony payments.
Can Your Alimony be Modified?
First off, Colorado no longer calls it “alimony,” as there are two kinds, and the distinction matters. Here are the two types:
- Contractual Spousal Support, where the two parties mediate the terms, amount, and duration of the payments, and …
- Spousal Maintenance, where the court sets the terms, amount, and duration of payments after the parties have failed to agree in mediation.
“Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.”
This means: Court-ordered spousal maintenance is always modifiable. The court created it. The court can change it.
On the other hand, certain contractual spousal support arrangements cannot be modified. If you and your ex-spouse agree to limit the court’s power, then there’s nothing the court can do down the road to change the payments.
For example: If you and your ex negotiated a separation agreement, and explicitly made spousal support non-modifiable, you’re stuck with it. This means:
- If you lose your job, you can’t modify your payments.
- If you lose a limb, you can’t modify your payments.
- If either of you wins the Power Ball jackpot, neither of you can modify the payments.
Non-modifiable support clauses safeguard each party in case the other’s financial situation improves or deteriorates. Some divorcees put the non-modifier in, and some don’t. If you and your ex agreed to non-modifiable support, you can stop reading here. The court will not be able to help you.
The rest of this article will discuss modifiable spousal maintenance and support.
Is Your New Situation “Substantial and Continuing?”
Let’s look at the Colorado statute governing post-decree modifications. Section 14-10-122 states:
“Except as otherwise provided (maintenance is non-modifiable) the provisions of any decree respecting maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair.” — C.R.S. 14-10-122
- You can only decrease alimony payments that were due after you officially filed for modification, and
- You must show changed circumstances so substantial and continuing as to make the original alimony order unfair.
The first part means you cannot ask the court to decrease the amount of maintenance you should have paid before requesting modification.
The second places the burden of proof on you to show that:
- circumstances have changed substantially,
- the change could be permanent, and
- your new situation renders the original maintenance/alimony terms unfair.
You must demonstrate all three points for a court to consider modifying your alimony terms.
Three Ways to Decrease Alimony Payments
First, a disclaimer: There are no guarantees when it comes to modifying spousal maintenance or support payments. Colorado judges have total discretion to decide these matters as they see fit. They can deny your petition to decrease alimony payments even if you’ve presented a strong justification.
This is why you need an experienced Family Law attorney for your particular case. We’ve been in lots of courtrooms. We’re familiar with many judges. A lawyer who knows which factors might sway your particular judge is your best hope for modification.
Now, the three possible ways:
One: A Decrease in Your Income
Anyone can experience a financial setback. It could be a loss of employment, a failing business, or a sharp decline in royalties or other passive income. Any of these setbacks can make it tough to pay your own bills, much less continue paying alimony.
Will a court examine your new circumstances and decrease the amount of maintenance or spousal support you must pay? Maybe — but probably not.
Colorado courts require a “substantial and continuing” change in your financial circumstances before considering modification. It’s not enough that you’ve lost your job, been forced to take a pay cut, or have seen business revenues decrease. To most judges, these are considered temporary setbacks.
Let’s look at common scenarios to understand what might be a good case for modification based on your decreased income.
Loss of Job
It can be difficult to modify alimony after a job loss, but it’s statutorily possible in certain situations. What if you can’t find a job that matches your previous earnings? This can happen, especially to older professionals who must compete in a younger workforce. This is a bit of a gray area (no pun intended).
You must show that your inability to find a similar-paying position constitutes a “substantial and continuing” change. The problem is, substantial and continuing is a vague idea that’s open to individual interpretation.
Retirement funds and pension accounts are divided as marital property during divorce. That is a separate matter. The question here is, can you modify or terminate spousal maintenance if you happen to retire early?
It depends on whether you have a good-faith justification for it. Otherwise, a judge will decide you’re comfortable enough without an income to continue paying your ex-spouse. Fortunately, there are several factors a court can examine. These include:
- an injury or failing health,
- age and fatigue, or
- the type of work the payor is retiring from, especially if it’s physically demanding
— In re Marriage of Swing (Colorado Appeals Court, 2008)
Here’s a recent success story from the Robinson & Henry case files:
New Job with Lower Pay
What if you take a new job that has a lower salary? The court is going to want to understand the circumstances around the change in jobs and income.
- Did you involuntarily lose your first job, and, after months of failing to secure a similar position, take a lower-paying job just to get by?or
- Did you voluntarily leave your higher-paying job for one where you make less money?
So, the first scenario is at least relatable. The second one will raise suspicion.
How much did your income decrease? In my experience, a court won’t bother if a client’s income dropped by, say, 10 or 15 percent. However, a 40 percent drop in income, especially if it was involuntary, would merit a hearing.
Always Get the Court’s Consent
If your income drops for any reason — job loss, pay cut, slow business — it’s important that you file for modification reasonably soon. Wait at least a couple of months first, so you can establish that you’ve made a good-faith effort to regain your previous income.
Do not decrease or stop alimony without the court’s consent.
Even if you’ve “worked something out” with your ex, get the court to sign off on the agreement. Without a court order modifying maintenance/alimony, the original terms still apply. Your ex can go back to court anytime and come after you for non-payment.
Two: Your Ex Now Earns Significantly More
Court-ordered maintenance is primarily based on the receiving spouse’s need.
Often what we see is one spouse stayed home or earned considerably less income during the marriage. After divorce, they now must strive to become self-sufficient. Spousal maintenance provides financial support in the meantime.
Can you ask the court to decrease alimony payments after learning that your ex earns substantially more income than before? Absolutely.
Will the court grant your modification request, even after confirming that your ex can financially support himself/herself? That’s a toss-up.
The Court’s Discretion
Overall, it’s easier to decrease alimony based on the receiving spouse’s improved financial situation. However, it is still completely up to the judge in your particular case.
Statutorily, the same standard from 14-10-122 applies: If your ex is thriving financially, you must show that this change is “substantial and continuing” enough to make the court’s original terms unfair.
For example: Your ex now earns a significantly higher income than you do, but you’re still required to pay them alimony. Clients ask, how can that not be unfair?
Length of Maintenance Order
Timing is everything, even in spousal maintenance modification requests. One factor many courts consider is how many alimony payments are left based on the original separation agreement or court order. If there’s a year or less left on the order, a judge may keep it in place. Here are a few reasons why:
- Your ex has not yet had the new job or improved finances long enough;
- It’s easier to let the original terms expire, and be done with it all, and
- The judge doesn’t want to see you or your ex on the docket every time something changes
Your Ex Gets a Degree
Going back to school to earn a degree — especially a post-graduate degree — can improve your ex’s earning potential. However, this academic accomplishment may not be the best reason to ask for a decrease in alimony, especially if you have a short payment term.
Three: Your Ex is Living with a New Partner
The surest scenario for stopping alimony or maintenance payments is if the receiving spouse remarries or dies. However, what if your ex moves in with a new romantic partner, but does not marry them?
Many states automatically terminate alimony if there’s proof the recipient spouse is cohabitating and sharing expenses with a new partner. Not Colorado.
The Centennial State does not see cohabitation as a continuous change in circumstances. It is not a legal, permanent change in your ex’s status. Also, it’s difficult to prove just how much your former spouse relies on their new partner’s financial support. Without marriage, neither has any obligation to support the other. They could split up anytime.
This is not a new wrinkle in Colorado law. Let’s look at a case from 1991 that helped establish that cohabitation is not grounds for terminating alimony or maintenance.
In re Marriage of Dwyer (1991)
Rodney Dwyer divorced his wife Anne in 1983 after 24 years of marriage. A court ordered Rodney to pay spousal maintenance to his former wife for five years. The court had the option of continuing the payments past those five years. As Anne’s payments were about to expire, she filed a motion to continue maintenance in late 1987.
Rodney revealed to the court that Anne had been living with an adult male and that maintenance should be terminated under C.R.S 14-10-122(2) due to “the remarriage of or the establishment of a civil union by the party receiving maintenance.”
The trial court granted the ex-wife continued maintenance based on evidence that she still needed the support and was not married. The husband appealed.
Cohabitation is Not Marriage
Rodney argued that the trial court abused its discretion by not treating Anne’s cohabitation with another man as a marriage. The appellate court found that “unmarried cohabitation is not, in and of itself, sufficient grounds for suspending, reducing, or terminating maintenance.” The court upheld the lower ruling, noting also that:
“ … Unmarried cohabitants do not assume the reciprocal obligations of marriage, including the common law duty of support.”
— In re Marriage of Dwyer, 825 P.2d 1018, 1019 (1991)
Is this an Abuse of the System?
It sure can look that way. You see your ex in a relationship with every appearance of a marriage. However, the law does not consider it a marriage.
Bottom line? The court does not want to mess with a temporary situation. A judge will only consider changes that are permanent or at least long-term.
Is Modification an Option for You?
Whatever your reason for seeking to decrease alimony, you should understand your obligations and options. The Family Law Team at Robinson & Henry has experienced attorneys who are ready to listen, advise, and advocate on your behalf. Let’s find a solution. Call 303-688-0944 for your case assessment.