The Modification of a Denial of Spousal Maintenance at Permanent Orders
| Publication year | 2010 |
| Pages | 37 |
| Citation | Vol. 39 No. 2 Pg. 37 |
2010, February, Pg. 37. The Modification of a Denial of Spousal Maintenance at Permanent Orders
February 2010
Vol. 39, No. 2 [Page 37]
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles focus on practice tips and discussions of current issues within the realm of family law.
Coordinating Editors
Trish Cooper, Denver, of the Law Office of Stephen J. Harhai-(303) 329-8300, tcooper@harhai.com; Meredith Patrick Cord, Colorado Springs, of Johnson and Cord, PC-(719) 471-4034, mpc@johnsoncord.com
About the Author
James J. Keil, Jr. specializes in family law. He is a member of the CBA Family Law Section and the Colorado Trial Lawyers Association, and serves as a part-time municipal judge in Columbine Valley and Bow Mar-(303) 422-0700, jjklawyer@aol.com.
This article discusses whether a court has jurisdiction to modify a denial of a request for the award of spousal maintenance made at a litigated permanent orders hearing. It explains how maintenance is awarded and modified in Colorado in light of CRS § 14-10-122(1)(a) and relevant case law.
In a dissolution of marriage action, either party may request an award of spousal maintenance at permanent orders.(fn1) A party seeking maintenance must request it prior to or at a permanent orders hearing or the right to seek or receive maintenance is waived.(fn2) Before a maintenance award is made, the court makes a threshold determination that a requesting spouse lacks sufficient property (including marital property) to provide for reasonable needs, and that he or she is unable to be self-supporting through appropriate employment.(fn3) The statutory threshold for maintenance is a flexible standard that takes into account the particular facts and circumstances of the marriage and the reasonable expectations the parties established during the marriage.(fn4) Once the statutory threshold has been met, the court examines all relevant factors, including:
1) the financial resources of the party seeking maintenance;
2) the party's future earning capacity;
3) the standard of living established during the marriage;
4) the duration of the marriage;
5) the age and physical and emotional condition of the spouse seeking maintenance; and
6) the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting the needs of the spouse seeking maintenance.(fn5)
Given the economic downturn of the past two years, the family law practitioner must be aware of the circumstances under which a spousal maintenance award is modifiable. This article highlights several of the seminal cases regarding modification of spousal maintenance. It also addresses the question (not previously answered in the holding of any reported Colorado appellate case) of whether a denial of a request for maintenance made by a party at a litigated permanent orders hearing is modifiable.
Jurisdiction to Modify
A court may reserve jurisdiction to review, adjust, or extend maintenance where an important contingency exists at the time of permanent orders and where the outcome may significantly affect the amount or duration of the maintenance award, provided this contingency is based on an ascertainable future event and can be resolved within a reasonable and specific period of time.(fn6) A court also may reserve jurisdiction to modify maintenance by making a nominal award-such as one dollar per year-at permanent orders.(fn7)
The parties to a separation agreement may expressly preclude or limit the modification of maintenance.(fn8) CRS § 14-10-122(1)(a) provides that the court may modify a maintenance award "only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair. . . ." Once the party seeking to modify maintenance meets this requirement, it is within the court's discretion to modify the maintenance decree to meet the needs and abilities of the parties.(fn9)
If at permanent orders, the court awards maintenance (even a nominal amount) or expressly reserves jurisdiction with the appropriate findings, the court retains jurisdiction under CRS § 14-10-122(1)(a) to modify the award or to review the award under CRS § 14-10-114.(fn10) It is less clear whether a court has jurisdiction to modify the...
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