Family Law, Divorce, Custody and Child Support Attorneys in Denver, Colorado

Temporary Maintenance

After a divorce is filed, but while you are still waiting for the final hearing where maintenance is decided, you can obtain a “temporary” maintenance order.

Temporary maintenance is intended to provide for as close to a normal lifestyle as possible, given that the family probably now has two sets of bills instead of one.  The maintenance may be in the form of a regular check from one spouse to another, an agreement for payment of certain marital expenses, or a combination of both.

The good news is that there is a formula for temporary maintenance.  The bad news is that the formula only applies to couples with a combined income of less than $75,000.  If your combined income exceeds this threshold, then the court will look to the statutory factors, including those set forth below.

A court will revisit the temporary maintenance order at the final hearing at the end of your divorce case, applying the statutory criteria.  However, since a party’s ability to pay is one factor, and the reasonable needs of the receiving party is another, the fact that the parties may have been making ends meet under the temporary order may incline a court to mirror than number in a final order.

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“Permanent” Maintenance

The use of the phrase “permanent” maintenance may be misleading.  Generally speaking, lawyers will use this terms to distinguish a maintenance order that comes out of either a Separation Agreement or a Permanent Orders hearing, from a temporary maintenance order.  While there are some maintenance orders which are, indeed, permanent, most orders are limited in duration.

It’s important to assess three things concerning permanent maintenance:

• First, is a spouse entitled to it at all?
• Second, how much support is likely to be ordered?
• Third, how long will a party likely be ordered to pay maintenance?

While not true in all cases, in a marriage of substantial duration, if there exists a notable difference in incomes, then there is a maintenance question.  What constitutes a marriage of substantial duration or a notable difference in incomes varies considerably.

The amount of support is also very difficult to calculate, estimate or anticipate.  Since there is no statutory formula for permanent maintenance calculations we’re left balancing a list of factors which all have to be supported by evidence.

The duration of maintenance payments, also called the “term,” is likewise difficult to predict.  Many lawyers will default to half the term of the marriage; however, this simplistic calculation of the term rarely survives the first round of negotiation.  A term may be longer, based on certain facts, or may be shorter.

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“Top 10″ Factors

The following is only a partial list of the factors a court may consider when assessing a maintenance award.  Each of these factors must be shown by a preponderance of evidence.  That evidence may include experts, employment files, financial records, medical reports, etc.

• Length of the marriage
• Disparity of income
• Reasonable needs of receiving spouse
• Extent of any separate property
• Age of both spouses
• Ability of paying spouse to pay
• Ability of receiving spouse to work
• Work history of receiving spouse
• Level of education/training of receiving spouse
• Educational needs to re-enter work force

Generally, the court first determines if the spouse requesting maintenance lacks sufficient means to provide for his or her reasonable needs and unable to support him or herself through appropriate employment.

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A Slippery Number

If maintenance is warranted, the court will order maintenance in an amount that the court deems just after considering various relevant factors. Easier said than done.

Recently, a three-judge panel of family law judges was given the same divorce fact scenario and asked to tell the audience what their maintenance awards would be. One said $1,500 a month. The second said $1,000. The third judge said $0.

The court does not consider any marital misconduct of a spouse when making a maintenance determination. (See “No Fault” Divorce).

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Statutory vs. Contractual Maintenance

There are two types of maintenance awards in a Colorado divorce – statutory and contractual. A judge can only issue statutory maintenance. Only the parties can enter into contractual maintenance.

There are many differences between these two types of award. Those difference can be huge, with enormous consequences for both parties. For example, statutory maintenance can always be modified by a court based on changed circumstances of either party: contractual maintenance cannot be modified by a court.

The facts and circumstances in each case weigh heavily on any determination concerning spousal maintenance. Our firm can help walk you through the various factors a divorce court assesses considers when issuing an order for spousal maintenance.

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