Until now (Jan. 1, 2014, actually), there were no statutory maintenance guidelines in Colorado. But wait, I’m a little ahead of myself. First, what is “maintenance” and how is maintenance different from “support”? And, by the way, what does “statutory” mean?
Let’s start at the beginning.
“Statutory,” not surprisingly, means derived of a statute. A “statute” is a law created by the legislature as opposed to “common law,” which is founded upon prior court decisions. Accordingly, “statutory” refers to a law created by legislative action and which is encoded in the laws, or “statutes,” for the state.
“Maintenance” and “support” both occur in the context of divorce. The longer — and perhaps more accurate — terms for each are “spousal maintenance” and “child support” which are, admittedly, at least a bit more descriptive.
In many (if not most) states in this country, “maintenance” is referred to as “alimony”. “Alimony” comes from the Latin “alimonia” (no, “alimonia” is not an element) meaning “sustenance.” It is not a far reach from the Latin to understand that “alimony” (or “maintenance” in this state) means “sustenance” or “support” of one spouse by the other following divorce. Oh, by the way, in Colorado, “divorce” is more properly referred to as “dissolution of marriage.”
In divorce (or “dissolution”), there are generally three major issues to resolve at least as regards to the material aspects of the marriage. Presuming there are minor or dependant children, the first matter is “support.” Simply, who will provided what financial support for the children and in what amount?
Until now (actually, Jan. 1, 2014), presuming that the divorcing couple earned between them $20,000 or less per month, child support was calculated by a “chart” with definable “inputs.” Beginning with the New Year, the combined income amount subject to the “chart” calculation will be increased to the monthly amount of $30,000.
The “inputs” considered in calculating support are matters such as the number of minor and dependant children; the number of “overnights” each parent will spend with the children following divorce; the amount of the combined income of the divorcing couple; the relative contributions of each party to that joint income; and which of the divorcing couple will provide heath insurance and other similar expenses for the children. By agreement, the divorcing couple may make additional (or sometimes alternative) arrangement for support of the children; for example, they may agree how the costs of post-secondary education will be borne.
Since time immemorial (OK, maybe not quite that long), in order to determine the amount of child support, it was determined by “inputs” in, grind a couple of calculations and presuming the soon-to-be-unmarried couple’s income was $20,000 per month or less, out popped the amount of support that would be paid and a determination of whom among the couple would be the one to pay. If the combined income was greater than $20,000 per month, then the court could do whatever was “fair” under all the circumstances.
The second financial matter contemplated in divorce is the division of property and, similarly, the allocation of debt. Let’s say the couple owns a parcel or two of real property, has some bank, stock and retirement accounts. Let’s presume too that there are some debts. What will have to be determined is who gets what and, similarly, who is saddled with what debt.
An example might be helpful. Let’s say a couple has been married for 30 years and the husband earns three times the wife’s income. For the sake of this example, let’s imagine the husband would pay the wife $5,000 per month for six years. The total amount which would be due over the ensuing six years would then be $300,000. What the court may order — or what the parties might agree to — is, instead of the husband paying the wife $300,000 over time, the wife will receive a greater share of the property when divided and, in so doing, will receive no support at all. In this example, say the couple owns a home with $1 million equity. Ordinarily, the equity would be split 50-50 (or $500,000 each) but here, the wife would get $800,000 and the husband would get $200,000.
Until now (with the first of next year), the amount of maintenance was sort of “squishy,” the court would order what equity demanded. To be sure, there have always been matters that the court was obliged to consider: age of the parties, any disability, earning power of each party, the style of living to which the parties have been accustomed, the length of marriage and others. Beginning Jan. 1, however, the courts will adopt “guidelines” which will “recommend” the amount of maintenance which should be ordered. Similarly to the child support guidelines, certain “inputs” will be entered and out will “pop” the recommended maintenance.
There is, however, one key distinction. With the child support guidelines, the amount of support is “mandatory.” With the new maintenance guidelines — at least initially — the recommended amount of maintenance will only be recommended and the court may deviate from its formulaic application. While it remains to be seen, most practitioners presume that at least most times, most courts will generally abide by the maintenance obligation that the guidelines churn.
What all this portends of course, is that maintenance will be more even from one case to another and that the divorcing couple will have greater certainty in charting their future course than when playing maintenance “roulette.”
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. He may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.