Chapter 23 - § 23.3 • MAINTENANCE

• Jurisdiction: Colorado

§ 23.3 • MAINTENANCE

Unless the underlying agreement provides in specific and unequivocal language that maintenance is non-modifiable, maintenance can be modified upon a showing of changed circumstances so substantial and continuing as to make the terms unfair. C.R.S. § 14-10-122(1)(a); In re Marriage of Burke, 39 P.3d 1226 (Colo. App. 2001). Generally, a modification of maintenance applies to installments accruing subsequent to the filing of the motion to modify; however, the court retains the discretion to determine that the order shall not be retroactive if such an order would cause undue hardship or substantial injustice. C.R.S. § 14-10-122(1)(d); In re Marriage of DaFoe, 677 P.2d 426 (Colo. App. 1983). Notably, the court also has the discretion to modify installments of maintenance or child support due between the filing of the motion and the entry of the order, even if the circumstances justifying the modification no longer exist at the time the order is entered. C.R.S. § 14-10-122(1)(d).

The burden of proof in showing that a modification of maintenance is appropriate lies with the party who seeks to modify maintenance. In re Marriage of Davis, 618 P.2d 692 (Colo. App. 1980). The court that had original subject matter and personal jurisdiction continues to have modification jurisdiction. C.R.S. § 14-5-211(a); Rodgers v. Rodgers, 76 P.2d 1104 (Colo. 1938); Diegel v. Diegel, 215 P. 143 (Colo. 1923). Unless an underlying agreement or decree provides otherwise, maintenance automatically terminates upon the death of either party or remarriage or the establishment of a civil union of the party receiving maintenance. C.R.S. § 14-10-122(2)(a).

The decision as to whether the changed circumstances make the existing order unfair is within the discretion of the trial court. Weydeveld v. Weydeveld, 67 P.2d 72 (Colo. 1937); Huber v. Huber, 353 P.2d 379 (Colo. 1960)...