The Case for Maintenance Reform
| Publication year | 1994 |
| Pages | 53 |
| Citation | Vol. 23 No. 1 Pg. 53 |
1994, January, Pg. 53. The Case for Maintenance Reform
Based on legislative activity in the last two regular sessions, reform of Colorado's maintenance law has suddenly become a hot topic. A series of bills taking different approaches to the problem has generated serious debate within the bar. The issues are important and difficult and are likely to resurface in the new session. This article is intended to put the Colorado debate in a broader context, based on the growing literature making the case for maintenance reform and the efforts that have been made in this direction in other states.
Colorado's present maintenance statute is part of the "no-fault" divorce law adopted in 1971, based on the Uniform Marriage and Divorce Act ("UMDA").(fn1) This law placed a new emphasis on financial self-reliance by requiring that financial need be proved before support could be considered.(fn2) At the same time, the new statute provided that the law should "mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage."(fn3)
Over time, the self-reliance norms and a "clean break" policy have been emphasized more than the protective purposes of the law.(fn4) Across the country, spousal support awards have dropped significantly.(fn5) Although many academic and popular accounts condemn no-fault divorce for impoverishing female-headed families,(fn6) the evidence suggests that this change is the result of the change in the law of spousal support.(fn7) Those who drafted the no-fault divorce statutes did not intend these consequences,(fn8) and efforts have been made in many states to try to remedy them.
Colorado, like a number of states, requires that a spouse seeking maintenance prove financial need before the court may consider a claim for spousal support.(fn9) The threshold has two parts: a spouse must both "[l]ack sufficient property ... to provide for his reasonable needs," and be "unable to support himself through appropriate employment."(fn10)
Although the test has been interpreted somewhat flexibly,(fn11) the requirement is jurisdictional. The court cannot enter an award unless need is established. If a claimant succeeds in crossing the threshold, the court is charged with considering "all relevant factors," including a number of factors listed in the statute.(fn12) Nevertheless, the statute does not indicate how these factors should be evaluated or compared, and appellate courts have not elaborated much beyond the statutory language.(fn13)
There are strong disincentives to making maintenance claims in the present system. The first obstacle is the threshold rule itself. Beyond its legal effects, the requirement that maintenance claimants prove their dependence and incapacity, and the common suggestion that they need "rehabilitation," are demeaning. The rules also can prove emotionally counterproductive: the effort put into establishing need can seriously undermine the larger goal of helping a spouse move toward greater independence and self-sufficiency.
The fact that the law vests trial court judges with broad discretion also serves to deter claims. Attitudes toward spousal support vary significantly from courtroom to courtroom and from district to district across the state, making it difficult to predict how successful a claim will be. Because it is expensive and difficult to litigate claims, particularly for those who can barely afford legal services, the decision to seek maintenance becomes an expensive gamble. Moreover, the lack of predictable or consistent standards also makes it more difficult to negotiate or mediate agreements providing for maintenance.
Many critics have pointed out that the focus on financial need does not take into account the complex economic realities of both marriage and divorce, especially for families in which there have been significant changes of economic position during marriage. Another criticism is that the system is so expensive and difficult to administer that it is only of use to relatively wealthy claimants. More aspirationally, the present statute can be challenged for sending the wrong messages about the seriousness of marriage
...
To continue reading
Request your trial