The sudden loss of employment can catch anyone off guard. You may lose certainty over what you can afford until you find a new job — and you have little control over how long that will take. If you owe spousal maintenance to an ex-spouse on top of your other bills, it’s understandable to want to seek relief. You may be asking “If I lose my job, do I still have to pay spousal maintenance in Colorado?” The short answer is yes. However, you may be able to change the court’s original order.
Is Your Support Order Modifiable?
The court can only modify its own orders when it comes to post-divorce support payments. Therefore, your ability to reduce spousal maintenance payments depends on whether they are modifiable in the first place. So, the first thing you need to find out is what kind of maintenance agreement you and your ex have in place.
If you and your ex-spouse negotiated a separation agreement that explicitly made spousal support non-modifiable, you can stop here. You will have to continue making the payments no matter what. The court that approved your separation agreement has no power to change this contract, and it will enforce your non-modifiable order.
All other spousal maintenance or support orders are modifiable. If a judge awarded your ex spousal maintenance in the final orders, it can be modified or terminated. Also, if you and your ex negotiated a separation agreement and did not specifically make alimony non-modifiable, then you may be able to change it.
“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.” — Colorado Revised Statute 14-10-114(5)(a).
The rest of this article will discuss modifiable spousal support and maintenance payments. However, not all modifiable alimony orders can be changed by the payor involuntarily losing their job.
Adjusting Your Spousal Support Order
Your spousal support order/agreement may be subject to modification, however, that does not mean you will be able to change it — even if you lose your job.
Colorado courts don’t issue post-decree orders lightly, and judges will not consider changing them unless you meet certain criteria.
Let’s look at the 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
Here’s what that means: You can only adjust the payments that are due after you’ve officially asked the court to consider modifying the orders.
For example: Let’s say you lost your job in May, but you didn’t file for a modification until September. You still owe the full monthly amount that was due in May, June, July, August, and September.
You must show changed circumstances so substantial and continuing as to make the alimony terms unfair.
Most job losses are temporary. So, telling the court that you lost your job is not enough. You will have to convince the court that you either won’t be able to find new work or that the work you find will pay considerably less than what you earned before.
When to File Your Modification Request
File Soon, But Not Too Soon
Most attorneys will advise you to petition the court for a modification sooner, rather than later. Why? Because you are responsible for all the support payments that are due before filing for modification. You may even be on the hook for payments due after your filing, according to Colorado Revised Statute 14-10-122 (1)(d).
But there’s a legal catch-22 here. You must be able to show the court that you’ve made a concerted effort to find suitable new employment. The court will probably think it’s a little premature if you file for a modification the same month you lose your job.
So, how many job rejections do you need to convince the court your circumstances merit a change to your alimony order? Unfortunately, the law does not say. The standard of fairness depends on the judge handling your case. However …
The Burden is Heavy
A judge will decide whether your involuntary job loss constitutes a “substantial and continuing” decrease in your ability to pay support. Be warned, most Colorado judges are not predisposed to be sympathetic. Case precedent is clear that the burden of convincing the court falls upon the party seeking the modification — and that the burden is heavy.
The court will not modify a support order because of changed circumstances alone. The changes must create conditions where the court’s original order imposes unreasonable hardship on the payor or the payee.
What You Must Show the Court
Losing your job is not enough of a change to justify a spousal support modification. You must convince the court that losing your job has:
- Put you in a substantially worse financial situation than when the court issued its original orders, and
- That your new circumstances are involuntary and possibly permanent.
What if I Quit or Had to Leave My Job?
You cannot quit your job and expect the court to modify its original spousal maintenance order. That is considered voluntary unemployment. The court will still expect you to make regular payments as if your income never changed.
On the other hand …
If you were forced to resign, or left your job due to circumstances beyond your control, your unemployment might not be considered voluntary. This could apply to one leaving their job due to health conditions, or even early retirement, providing:
- The payor’s decision was made in good faith and not with the motivation to decrease or eliminate maintenance, and
- The decision was objectively reasonable based on factors such as the obligor’s age, health, and industry in which they were employed.
A similar analysis may apply to the payee spouse seeking to increase alimony after taking an early retirement. Let’s take a closer look at such a case.
In re Marriage of Swing (2008)
Nena Swing and her husband Dick Stuva divorced in 2005. Stuva, a long-haul truck driver nearing retirement age, was ordered to pay Swing $242 per week in maintenance (alimony).
In 2006, Stuva left his long-haul trucking career to take a local job. The new job paid less, but allowed the 64-year-old man to spend more time at home as he neared retirement. Now earning less, Stuva petitioned for, and was granted a modification of his weekly maintenance payments. The magistrate reduced Stuva’s payments by about half. His new job paid roughly half as much as he’d earned before.
The district court adopted the magistrate’s modified orders. Swing swiftly appealed.
Considering ‘Voluntary Underemployment’
Swing’s appeal argued that Stuva’s choice to take a lower-paying job did not make the original maintenance order of $242 per week unfair. Citing a landmark child support case, Rapson v. Rapson (1968), Swing argued that the magistrate had abused discretion by granting Stuva’s request for reduced alimony. After all, he had chosen to walk away from his higher-paying job. By doing so, he made a decision that benefitted only him.
Stuva maintained that he’d taken the lower-paying job “in good faith” and not to deprive Swing of alimony payments. Nearing retirement, he no longer had the stamina to “live in a truck” for 80 hours a week. Long-haul trucking would have required that.
Appeals Court Affirms Stuva’s Modification
First, the appellate court decided that child support and spousal maintenance orders are different. Therefore, precedent set in child support cases does not necessarily carry over to alimony matters. Next, it concluded that retirement may constitute “a substantial and continuing change of circumstances” which merits modification, saying:
“A Colorado court may consider an obligor spouse’s reduced income as a result of early retirement, and that if the court finds:
- the obligor’s decision was made in good faith, meaning not primarily motivated by a desire to decrease or eliminate maintenance, and
- the decision was objectively reasonable based on factors such as the obligor’s age, the obligor’s health, and the practice of the industry in which the obligor was employed,
… the court should not find the obligor to be voluntarily underemployed.”
— In re Marriage of Swing (Colo. App. 2008)
A lawyer can go over your specific situation and help determine if you have grounds to modify your spousal support payments.
What Happens if I Stop Paying Alimony?
Colorado law expects you to follow court orders. If you stop making payments, your former spouse can use the court to come after you.
First, you’ll likely receive written notice that you are bound by court orders to make your spousal support payments. The notice can come from your ex or their attorney. If it comes from your ex’s attorney, it may warn that you could face collection actions or be held in contempt of court.
Under C.R.S 14-10-122, any missed support payment automatically becomes a judgment. In other words, there will be no hearing to determine whether you owe what you didn’t pay.
Your ex-spouse can file a Verified Entry of Support Judgment with the court to take collection action, which can include:
- Wage Garnishment: Technically called “income assignment,” this is an effective method for collecting overdue support and ensuring the reliability of future payments. However, if you’ve lost your job, you might think you have no wages to garnish. Think again. Colorado can go after Unemployment Insurance and Disability payments if you are behind on court-ordered spousal support or child support.Or …
- A Lien on Property: Your ex can obtain an abstract of judgment from the courthouse that can be used to impose a lien upon any real estate you have. In order to release the lien from your property, you’d have to make all the back payments, plus interest.
If collection actions don’t seem the way to go, your ex and their attorney can file a Motion for Citation of Contempt of Court.
Contempt of Court
After a motion for citation of contempt has been filed, it’s quite possible the court will call you to appear at a contempt of court hearing where you’ll be asked to explain (“show cause”) why you haven’t complied with the court’s order.
You can tell the court you lost your job, but that alone won’t get you off the hook. You must still be able to show “substantial and ongoing” circumstances that make the court’s original order unfair.
Contempt of Court Punishments
If you are found in contempt, the court will pursue either remedial or punitive sanctions against you.
Remedial sanctions are new orders given by the court to bring you back in compliance with its orders. For example, the court can order that you pay a certain amount of the overdue balance by a certain date, in addition to making future payments on time.
Failure to meet the court’s remedial demands can result in:
- attorney fees and court costs, and/or
- jail time
You may be ordered to pay your ex’s attorney fees anyway, since your refusal to pay support caused your ex to take this legal action.
Punitive sanctions are reserved for behavior that blatantly disregards the court’s authority. An example of blatant disregard would be if you tell the court in advance that you have no intention of paying support and you follow through on that statement.
Punitive sanctions cannot be suspended, delayed, or purged. Once the judge decides the punishment, it will be carried out. Punishments can include:
- up to six months in jail, and/or
- other punitive measures the court imposes.
It is in your best interest to either make the payments as ordered or to negotiate an arrangement with your ex-spouse. You may be able to negotiate paying a lesser amount each month until you find a new job.
Don’t Leave Yourself Vulnerable to Legal Action
If you’ve lost your job and worry about paying your court-ordered spousal support, you need to know your legal 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.