Modifying Maintenance/Alimony in Colorado
Monday, May 10th, 2010
We receive many calls from people that are looking to change the maintenance/alimony outlined in their divorce decree. There are a number of factors that come into play first, to determine if maintenance can be modified at all and, if so, by how much.
Court Ordered Maintenance vs. Contractual Maintenance
Courts in Colorado cannot deprive themselves of jurisdiction and so if the Court has determined that Maintenance will be awarded, it always has the option of modifying that award if the circumstances have significantly changed. On the other hand, if the parties have come to their own agreement about Maintenance, they have the right to make that Maintenance Plan NON-MODIFIABLE. When the parties agree on Maintenance it is called Contractual Maintenance as distinct from Court ordered Maintenance. Your attorney would have to review your Contractual Maintenance Agreement to see if the language creates Maintenance that is NON-MODIFIABLE.
Modifiable Maintenance: When and How Much can it change?
If you have a Maintenance Plan that is MODIFIABLE, the next question is if a Court will make a modification. Colorado law states that a Court can adjust Maintenance if there has been a significant and continuing change in the circumstances of the parties that renders the current agreement unfair.
Significant and Continuing Change in Circumstances
You may wonder, what type of change will rise to the level of significant and continuing. Often when people call it is because they have lost their job. Obviously, this is a significant change. However, the question is if it is a continuing change. Being between jobs is not enough to be continuing change. If however, you can show that you will not be able to get another job at the same income level then this may rise to the level of significant and continuing change.
Another example is when the person receiving Maintenance has a significant and continuing change in expenses. We have seen cases where the ex-wife lost her job due to health reasons and those health concerns were going to prevent her from going back to full time work in her field. This could rise to the level that required a modification to the Maintenance Plan.
Another example is when the ex-spouse paying maintenance retires. If this has not been handled in the Maintenance Agreement, it will need to be taken care of through a modification. The question before the Court will be if this is a true retirement or just a way to avoid paying Maintenance. The Court will look to what is common in the field or profession as a retirement age and method of retirement. There is no question that there is a change. The question is, does it need to be a continuous change that renders the current agreement unfair.
Maintenance is one of those areas of divorce law that requires advocacy. There are no formulas or measures to go by. You need to convince the Court that the change in circumstances is significant and continuing and that it renders the present agreement unfair. This needs to be done through the presentation of evidence and through a strong argument.
Feel free to give us a call if you would like to discuss your situation and see if modification of Maintenance is something that is worth advocating for.
Court Ordered Maintenance vs. Contractual Maintenance
Courts in Colorado cannot deprive themselves of jurisdiction and so if the Court has determined that Maintenance will be awarded, it always has the option of modifying that award if the circumstances have significantly changed. On the other hand, if the parties have come to their own agreement about Maintenance, they have the right to make that Maintenance Plan NON-MODIFIABLE. When the parties agree on Maintenance it is called Contractual Maintenance as distinct from Court ordered Maintenance. Your attorney would have to review your Contractual Maintenance Agreement to see if the language creates Maintenance that is NON-MODIFIABLE.
Modifiable Maintenance: When and How Much can it change?
If you have a Maintenance Plan that is MODIFIABLE, the next question is if a Court will make a modification. Colorado law states that a Court can adjust Maintenance if there has been a significant and continuing change in the circumstances of the parties that renders the current agreement unfair.
Significant and Continuing Change in Circumstances
You may wonder, what type of change will rise to the level of significant and continuing. Often when people call it is because they have lost their job. Obviously, this is a significant change. However, the question is if it is a continuing change. Being between jobs is not enough to be continuing change. If however, you can show that you will not be able to get another job at the same income level then this may rise to the level of significant and continuing change.
Another example is when the person receiving Maintenance has a significant and continuing change in expenses. We have seen cases where the ex-wife lost her job due to health reasons and those health concerns were going to prevent her from going back to full time work in her field. This could rise to the level that required a modification to the Maintenance Plan.
Another example is when the ex-spouse paying maintenance retires. If this has not been handled in the Maintenance Agreement, it will need to be taken care of through a modification. The question before the Court will be if this is a true retirement or just a way to avoid paying Maintenance. The Court will look to what is common in the field or profession as a retirement age and method of retirement. There is no question that there is a change. The question is, does it need to be a continuous change that renders the current agreement unfair.
Maintenance is one of those areas of divorce law that requires advocacy. There are no formulas or measures to go by. You need to convince the Court that the change in circumstances is significant and continuing and that it renders the present agreement unfair. This needs to be done through the presentation of evidence and through a strong argument.
Feel free to give us a call if you would like to discuss your situation and see if modification of Maintenance is something that is worth advocating for.
