Let’s be honest, few people who are getting a divorce want to financially support their ex-spouse in the future. In Colorado, though, many courts order one spouse to pay the other alimony, which is technically called spousal maintenance or spousal support. Sometimes, there is no way around the payments, which can last years or even a lifetime. However, in some circumstances, you may be able to reduce your payment amount, the duration of the payments, or avoid paying alimony altogether. In this article, we’ll explore these circumstances and whether they apply to you.
In order to avoid paying spousal maintenance, you must show the court that your former spouse does not need it.
Spousal maintenance is not mandatory in Colorado. In fact, you may not have to pay it if you can show the court that your spouse can support themselves following the divorce.
Prove Your Spouse is Underemployed
Income is one of the greatest deciding factors for alimony in Colorado. The court will consider each spouse’s monthly income to help it determine whether maintenance is appropriate. The court will take into account whether a spouse could be working or earning more.
Consider this scenario:
A husband who is getting divorced quits his job as a Certified Public Accountant and takes a job waiting tables at a local restaurant. He says the job is less stressful, but his wife’s attorney believes the career change is an effort to pay little to no alimony. In this instance, the court may consider this man to be voluntary underemployed and order him to pay spousal maintenance anyway.
If you believe your spouse has made a bad faith career change or has not done his or her due diligence to find employment that reflects their skills or level of education, you may be able to argue that your spouse is voluntarily underemployed.
If you can prove your soon-to-be former spouse is voluntarily unemployed or underemployed, Colorado courts will calculate an alimony payment based on your spouse’s potential income. Colo. Revised Statutes § 14-10-114 This is called imputed income.
How to Prove Underemployment
Request Evidence of the Job Search
If your soon-to-be ex is making a concerted effort to find gainful employment, he or she should be able to present evidence they’ve been applying for work. You may be well on your way to getting your spouse’s income imputed if they cannot produce a list of companies they’ve submitted resumes to or the contact information for people they’ve interviewed with.
Use a Vocational Evaluator
Your attorney can ask the court to appoint a vocational evaluator to determine how much your spouse could make. Additionally, if the other party questions how much you could be making, a vocational evaluator can be helpful as well.
Note ➤ If your spouse has gone back to school to obtain additional education or training to improve his or her career opportunities, then the court is unlikely to impute income. We’ll delve into more of these kinds of exceptions below.
What Exactly is Appropriate Employment?
There is no bright-line test for voluntary underemployment. Colorado courts have held that “appropriate employment hinges upon the parties’ economic circumstances and reasonable expectations established during the marriage.” In re Marriage of Bartolo, 971 P.2d 699, 699 (Colo. App. 1998)
Take a Denver County divorce from 1980, for example. The wife had worked as a keypunch operator during the marriage, while the husband attended college to pursue a teaching certificate. The court found that both spouses considered this a temporary arrangement, and that the wife planned to return to college for graduate work in music once the husband became a certified teacher.
The court then found that:
“…it was the intent of the parties during the marriage that ‘appropriate employment’ for wife would be a career in opera or in the teaching of music, that wife’s employment as a keypunch operator was considered by the parties to be a temporary pursuit dictated by the financial needs of the husband’s education, that appropriate employment for wife required that she obtain an advanced degree, and that financial assistance in the form of temporary maintenance from the husband was required in order for her to obtain such a degree.” In re Marriage of Angerman, 44 Colo. App. 298, 300, 612 P.2d 1166, 1167 (1980)
Because the court found that the wife was capable of eventually earning a higher income, the husband was only required to pay temporary spousal maintenance while she completed her education.
Legal Exceptions to Voluntary Underemployment
There are some exceptions to the voluntary underemployment legal standard when the court will not impute income, including when:
- a spouse is physically or mentally incapacitated
- a parent is caring for a child younger than 30 months for whom you both owe a joint legal responsibility
- a parent who is incarcerated for a year or more
- a spouse who is temporarily working a lower-paying job that he or she reasonably believes will lead to a higher income
- a spouse’s current job is considered a “good-faith career choice”
- a spouse is attending school for a degree or certification that will result in a higher income. C.R.S. § 14-10-114
Strategically Use Your Bonuses to Your Benefit
Bonuses can be considered income for the purposes of calculating maintenance. Even if your bonus varies from year to year, or you don’t get one every year, the court will likely take an average of your recent bonuses to include as part of your income.
Bonuses, though, can also be considered marital assets that are therefore subject to property division. If the court divides the actual monetary value of the bonus among both parties, the bonus then cannot be included as income.
For example, let’s say you get a quarterly bonus of $50,000. During property division, the court gives $25,000 each to you and your spouse. The court cannot then consider that $50,000 when calculating your gross income.
Taking this approach may not do away with a maintenance payment altogether, but it might reduce the payments. How much income your spouse makes also will play a role in how effective this strategy could be for you.
Length of Marriage
Colorado’s spousal maintenance guidelines only provide courts direction for marriages lasting between three and 20 years. You’re not automatically off the hook if you were married less than three years. A judge could order you to pay your ex if:
“given the circumstances of the parties, the distribution of marital property is insufficient to achieve an equitable result.” C.R.S. § 14-10-114(3)(h)
Generally speaking, though, it’s unlikely you will have to pay maintenance.
Show Your Marriage was Annulled
Spouses who get an annulment generally cannot request alimony. Once a marriage is annulled, it is treated as though it never existed. So, you cannot be ordered to pay spousal maintenance to someone who was legally never your spouse.
However, Colorado courts will only declare your marriage void in certain circumstances. Any one of the following scenarios could be grounds for annulment:
- You or your spouse were unable to consent at the time of the marriage due to mental incapacity, sickness, or the influence of alcohol, drugs, or other substances.
- You or your spouse were unaware that the other party could not consummate the marriage by sexual intercourse.
- You or your spouse were underage and did not have the consent of your parents or guardian.
- The marriage was based on fraud.
- You or your spouse were married under duress.
- Your marriage involved bigamy or incest.
Your Spouse Has Enough Assets to Meet Their Needs
Spousal maintenance is not automatically granted under Colorado law. If your spouse is requesting maintenance from you, he or she will need to show that they:
- lack sufficient property to provide for his or her reasonable needs; and
- cannot support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home.
C.R.S. §§ 14-10-114(3)(a)(II), (3)(b), (3)(c), and (3)(d)
If you can show that your spouse has sufficient assets to maintain a comparable lifestyle post-divorce, you may not be required to pay maintenance. This includes any marital property your spouse receives in the divorce settlement. Colorado courts must determine property division before awarding spousal support. In re the Marriage of Jones, 627 P.2d 248 (Colo. 1981) However, a spouse is not required to use their marital assets in lieu of maintenance therefore, this argument can be complicated.
Preexisting Alimony or Child Support
Do you have a child from a previous relationship or an ex-spouse for whom you are making support payments? If so, you’ll probably be relieved to know that a new maintenance award does not supersede preexisting support orders.
The court cannot expect you to meet new obligations without considering existing ones. Plus, you must be able to meet your own needs.
Preexisting maintenance and child support payments will factor into your income when the court determines a maintenance payment. “’Adjusted gross income’ means gross income as defined in subsection (8)(c) of this section, less preexisting court-ordered child support obligations actually paid by a party.” C.R.S. 14-10-114 (8)(a)(I)
Adjusting income for preexisting child support payments is straightforward: the payment amount is subtracted from your gross income.
However, you will need to prove you are up to date on the child support payments. Additionally, the amount of preexisting child support payments cannot exceed the state’s schedule for basic support obligations. In other words, the court does include extra money you may provide that goes above and beyond what is actually ordered.
Call a Family Law Attorney Today
Colorado spousal maintenance law is complex. You need a family law attorney who knows the ins and outs of spousal maintenance. Call 303-688-0944 today to begin your free case assessment.