Maintenance in Colorado: Issues and Factors
| Publication year | 1992 |
| Pages | 2399 |
| Citation | Vol. 11 No. 1992 Pg. 2399 |
1992, November, Pg. 2399. Maintenance in Colorado: Issues and Factors
Maintenance awards in Colorado reflect the sociological perceptions of the judges who make the decisions. Consequently, societal change during the past twenty years has greatly impacted this aspect of divorce.
The following article discusses the court's jurisdiction in making and modifying maintenance awards and identifies some of the factors discussed by the appellate courts in this connection.
Prior to 1972, awards of permanent maintenance were common. The role of a homemaker and the disparity of earning capability between the typical career husband and the nonworking wife were not questioned. However, things began to change following the adoption of the "no-fault" Uniform Dissolution of Marriage Act in Colorado. Permanent maintenance became rare, and courts increasingly awarded only short-term "rehabilitative" maintenance. This persisted until the mid- to late-1980s, when information became available on the long-term economic consequences of divorce.
In 1985, the results of a ten-year study focusing on divorced California couples were published. One finding was that the average divorced woman and children experienced a 73 percent decline in their standard of living in the first year after a divorce, compared to a 42 percent rise experienced by the former husband.(fn1) Similar results were obtained by the Gender Bias Task Force in Colorado, based on a 1989 sampling of twenty-eight cases:
Survey results suggest that, eight years after the divorce, the wife will have a negative net worth, while the husband's projected net worth will be approximately $200,000.(fn2)
Currently, there is an increase in awards of permanent maintenance. The judicial system is beginning to address the inherent sociological inequities that exist in the post-decree financial situations for men and women of divorce.(fn3) However, many uncertainties still exist in this area. The remaining sections of this article review prior case law and identify the factual elements that impact awards of maintenance.
Generally, the courts look at the financial condition of both parties, their earning capabilities and their financial needs at the time of the permanent orders hearing.(fn4) In the end, the amount of maintenance awarded in a particular case is solely up to the discretion of the trial judge hearing the evidence.
It is difficult to predict maintenance awards. For example, one informal poll taken at a judicial conference based on hypothetical facts resulted in maintenance awards ranging between zero and $5,000 per month, with no clear majority opinion. In addition, the Gender Bias Task Force concluded that there was no consistent correlation between the amount of the husband's net monthly income and the level of maintenance or whether the maintenance was permanent.(fn5)
The difficulty in determining the appropriate amount of maintenance arises from the competing objectives a court may seek to achieve. Permanent maintenance is awarded when the recipient spouse is otherwise unable to have a standard of living reasonably consistent with marital expectations and the payor spouse's economic circumstances. Rehabilitative maintenance is awarded to provide support for only a short period of time. It allows the recipient spouse to establish a career or obtain further education in order to provide for his or her own needs.
One frequent question is whether a homemaker of a long-term marriage is entitled to a standard of living similar to that of the career spouse who was employed throughout the marriage. On one hand, equality may be appropriate as the homemaker sacrificed educational and career opportunities which can never be recovered. On the other hand, the career spouse typically sacrificed other, less tangible items while pursuing a career, such as time for children and recreation.
Long-Term Marriage. The longer the marriage, the stronger the recipient spouse's claim for maintenance. For example, maintenance was awarded after a thirty-two-year marriage even where
High Marital Standard of Living. The court considers the marital standard of living.(fn8) The reasonable needs of a recipient spouse are determined in the context of the facts and circumstances of the marriage.(fn9) The recipient spouse is not required to consume the property awarded at permanent orders before the court can award maintenance.(fn10) Maintenance is appropriate when the recipient spouse's income is inadequate to provide him or her with the standard of living enjoyed during marriage and commensurate with payor spouse's income.(fn11) The recipient spouse is entitled to the same standard of living that he or she enjoyed during the marriage.(fn12)
Marital Expectations. Maintenance is...
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