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Maintenance

Marital Agreements

Maintenance may be waived in a valid marital agreement, but any limitation is subject to review for conscionability at the time of enforcement. CRS 14-2-307(2). The same is true for cases that predate the Marital Agreement Act. In re the Marriage of Dechant, 867 P.2d 193; (Colo. App. 1993).

Statutory Standard

Maintenance is provided for in the Uniform Dissolution of Marriage Act at C.R.S. 14-10-114. Maintenance can be very difficult to resolve because the statute provides minimum guidance and leaves the issue largely to a judicial determination of fairness. Because fairness, like beauty, is in the eye of the beholder, judical decisions on similar facts can diverge widely.

The statute calls for a two part analysis:

(1) Does the applicant meet the threshold requirements:

(a) Lacks sufficient property to provide for reasonable needs; and

(b) Is unable to support himself through appropriate employment; or

is the custodian of a child and employment is therefore not appropriate.

and

(2) What should the amount and duration be.

Threshold

The threshold requirements of section (1) were widely interpreted in a very restrictive manner until 1987 when In re the Marriage of Olar, 747 P.2d 676 (Colo. 1987) dramatically altered the landscape. Olar broadened the scope of maintenance by holding that "[t]he determination of what a spouse's 'reasonable needs' are, is dependent upon the particular facts and circumstances of the parties' marriage" and rejecting prior interpretations of reasonable need as the minimum requirements to sustain life.

Olar further expanded the maintenance concept by emphasizing that "appropriate employment" is not limited to any available employment, but rather is employment specially suited to the individual and taking into account expectations and intentions expressed during the marriage.

Current Ability to Pay

Watch for this malpractice trap. Even when a spouse is not currently able to pay maintenance, that does not mean that the applicant is necessarily ineligible for at least a nominal amount of maintenance. In re the Marriage of Fernstrum, 820 P.2d 1149, (Colo. App. 1991). If the client meets the threshold requirements but the other spouse cannot currently afford maintenance it may be advisable to request a nominal amount with a view to a later motion to modify the amount.

Duration

The court has three options in determining duration:

(1) It can award permanent maintenance;

(2) It can reserve jurisdiction to adjust maintenance based on a definite future contingency;

(3) It can determine a certain duration.

In re the Marriage of Fisher, 1996 Colo. App. LEXIS 360.

The duration of the award must take into account all of the statutorily mandated factors. For example, it was error to limit maintenance to 17 months for a wife with limited employment skills and where the court considered only the property awarded to the wife. It was also error to arbitrarily set a 6 month time limit after obtaining an undergraduate degree for full self-sufficiency. In re the Marriage of Nordahl, 834 P.2d 838 (Colo. App. 1992).

Modifiability

Another trap for the unwary is modifiability of a maintenance award. Maintenance may be modifiable or non-modifiable. Judicial awards of maintenance are always modifiable. Stipulated awards may be non-modifiable, but only if the language of the agreement unambiguously precludes maintenance. A modifiable maintenance award can be modified even after all the payments called for in the original award have been made. In re the Marriage of Aldinger, 813 P.2d 836 (Colo. App. 1991).

Modification

One who seeks to modify maintenance must show that there is a change of circumstances so substantial and continuing as to make the terms unfair. CRS 14-10-122. One who seeks to modify a decree has a heavy burden, and the issue is not whether, based on the current financial circumstances of the parties, the court would have awarded the same amount of support as incorporated in the original decree. In re the Marriage of LeBlanc, 800 P.2d 1384, (Colo App. 1990).

Reinstatement

A maintenance award which has been terminated due to the remarriage of the recipient may be reinstated if the subsequent marriage is determined to be invalid. In re the Marriage of Cargill, 843 P.2d 1335; (Colo. 1993).

Taxation

Maintenance is deductible by the payor and taxable to the payee, if the requirements of IRC 71 are met. Be aware that there are restrictions on excessive front-loading of maintenance which can result in recapture and that termination in proximity to certain dates relating to children can disqualify the deduction. See IRC 71 for details.