In Part I of my series about alimony in Colorado (which you can read here), I discussed how alimony (officially called “maintenance”) is awarded as part of temporary orders while a divorce is pending. Specifically, that post dealt with the formula that is presumptively applied when the parties earn a combined annual income of $75,000 or less. In this post, I will continue with the discussion of temporary maintenance (that is, maintenance awarded before the divorce is final) for situations in which the spouses together earn more than $75,000 per year.
When the husband and wife’s combined annual income is greater than $75,000 per year, there is no presumptive formula or guideline for the court to apply. As such, the amount to be awarded is determined on a case-by-case basis. Each case is different, and different judges will calculate temporary alimony differently.
Step 1. Is a spouse eligible for temporary maintenance?
The first thing that the court must determine is whether the spouse seeking alimony is eligible to receive it. The court must find that the seeking spouse:
(a) Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and
(b) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
“Reasonable needs” and “appropriate employment” are considered in light of the expectations that the spouses have developed during the marriage. “Reasonable needs” means more than bare essentials, but considers the spouses’ lifestyle during the marriage. “Appropriate employments” means employment suited to the individual. Not just any job, but a job suited to the person.
Step Two. Determining the Amount of Temporary Maintenance.Once the court determines that a spouse lacks sufficient property to support himself or herself, and that he or she is unable to support himself or herself by suitable employment, the court will go on to determine how much support should be paid to the other spouse. This calculation is very subjective. The court will consider “all relevant factors,” including six factors listed in the statute:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party’s ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party’s future earning capacity;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.
As you can see, these factors are broadly defined, and judges have wide discretion to determine the amount of temporary alimony. Therefore, it is important that you and your lawyer review all financial documents carefully and fully prepare for the temporary orders hearing.
This article is intended to serve as a very brief overview of the temporary alimony process. You should consult with an attorney to find out how the law will apply to the facts of your case. Call the Law Office of Kirk Garner today to schedule a consultation.