New Temporary Formulaic Spousal Maintenance in Colorado: an Overview

• Publication year: 2001
• Pages: 87
• Citation: Vol. 30 No. 8 Pg. 87

30 Colo.Law. 87 Colorado Lawyer 2001.

2001, August, Pg. 87. New Temporary Formulaic Spousal Maintenance in Colorado: An Overview

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87

Vol. 30, No. 8, Pg. 87

The Colorado Lawyer
August 2001
Vol. 30, No. 8 [Page 87]

Specialty Law Columns
Family Law Newsletter
New Temporary Formulaic Spousal Maintenance in Colorado: An Overview
by Albert M. Bonin, Elizabeth Henson

On July 1, 2001, a new law took effect for formulaic temporary spousal maintenance encompassing causes of action and motions for modification of temporary maintenance filed on or after that date. This article describes historical perspectives and concepts, such as "human capital," which eventually led to formulaic temporary spousal maintenance in Colorado, as well as the provisions of the new legislation

Early Efforts: 1991
Through 1993

In 1991, the Executive Council of the Family Law Section of the Colorado Bar Association ("CBA") commenced work on revisions to Colorado's spousal maintenance statute These proposed revisions were an attempt to implement recommendations of the Colorado Gender Bias Task Force Legislation was introduced at that time by Colorado Senator Pascoe and Representative Fleming to revise the spousal maintenance statute. An early maintenance committee ("1993 Committee") was formed to obtain and review spousal maintenance statutes in the fifty states. The 1993 Committee's work led to the introduction of legislation in 1993, based on the following determinations.

The Human Capital Concept

On May 13, 1992, Stephen Harhai, a member of the 1993 Committee, brought to the 1993 Committee's attention an unpublished work by Alan Parkman of the University of New Mexico, entitled The Reform of No Fault Divorce. Harhai described the article as an alternative framework for handling, in a logically consistent way, many of the issues with which the 1993 Committee was struggling. Parkman's article set forth a theory that the primary problem with no fault divorce was the inadequate financial award received by the stay-at-home spouse and the children at the time of the divorce.

Parkman's solution was to expand the definition of "property" to include the concept of "human capital," which was defined as the income-earning capacity of individuals. Under Parkman's theory, the human capital possessed by individuals at the date of the marriage should be treated as separate property, and the increase in human capital should be treated as marital property. If human capital is decreased during the marriage, compensation is required at the time of divorce for the reduced value of the separate property.

In light of the fact that division of property at divorce is so closely connected with maintenance, the "human capital" concept was adopted by the 1993 Committee as a basis for formulaic maintenance. The maintenance formula approach recognized that the economic lives of spouses are closely intertwined. Often, it is difficult later to segregate the economic and quality of life decisions and contributions of the parties. When a marriage is terminated, a period of adjustment generally is appropriate, during which the prior arrangements are recognized through a blending of the parties' income.

Proponents of this theory believed the maintenance formula approach to be appropriate for many of the same reasons that Colorado's child support guidelines were enacted; that is, the formula would lead to more predictability and fairness, allowing individuals with similar circumstances to receive equal treatment. However, unlike the child support guidelines, maintenance guidelines are not based on empirical studies, but on value judgments and perceived standards in the community regarding the income of the...