Vail Daily column: New maintenance considerations in divorce
August 19, 2014
It used to be that maintenance and support were treated differently. They still are but not exactly.
What, you may be asking, am I talking about?
Thanks for asking. And for keeping me on track. A few definitions will help.
First of all, other than plugging a few holes in your leaking ceiling, what is "maintenance"? Second, other than a sturdy wall or a Wonderbra, what exactly is "support"?
In divorce, support is defined as what supports the children. Financial support. Skrilla. Cash. Like that.
Speaking generally, "support" is what is paid by the higher-earning parent in a divorce proceeding to the lower-earning parent in order to "level the playing field" so that when the lower-earning parent has the kiddies in his or her home, that parent is able to adequately provide for them. Sometimes, when one parent lives with the kids substantially more than the other parent, support is paid even where the income difference is slight.
Maintenance is what most folks refer to as alimony. Alimony is what the court orders one party in a divorce to pay to the other party when the couple separates. While the purpose of support is to provide for the continued welfare of the kids, the purpose of alimony is to avoid any unfair economic consequences of a divorce, even after property is divided. Before awarding maintenance, the court will look at several factors, among them the parties' standard of living before the marriage and the other spouse's ability to pay.
LAW ABHORS A CRAPSHOOT
It used to be, if not quite arbitrary, the award of maintenance in this state was at least a little iffy. Often, one court awarded maintenance where another court in similar circumstances did not and a third awarded something but not what the first court may have.
Law, however, abhors a crapshoot. Fairness is — or at least should be — the law's middle name.
Which brings us back to support.
Since time immemorial — or for at least as long as I can remember — support was formulaic. If the divorcing couple together earned less than so much money (it used to be a combined $20,000 a year, now it's $30,000), support was, at its most elegant, a simple mathematical equation.
Figure out how many kids the marriage produced (parenthetically, this should be rather easy), toss in how many overnights each party will enjoy with the kiddies throughout the year, come up not only with what Mom earns and Dad earns but their respective percentages of the total and, lastly ,factor in such things as who will pay for medical insurance and day care and, after a mathematical incantation, out pops a figure of "statutory" support.
Simply, when the math is due, taking into consideration all the relevant facts, the law enacted by the Legislature will dictate who pays what to whom.
Of course, the parties have always been free by agreement between them to exceed the suggested minimum amount and for the very wealthy, the formula did not apply. Although the formula has some weaknesses — for example, the amount a mom or dad may pay for support in Alamosa is the same as alimony Aspen, where the cost of living is presumably higher — this schema has for the most part worked pretty well. It is worth considering that while the cost of living is less in Alamosa than Aspen, so too, likely is the income one can earn and so it all, at least in theory, in the main balances out.
TOO MUCH DRAMA
But until recently, maintenance wasn't like that. Instead it was more like Italian opera, filled with bombastic basso profundos, hoary divas and more drama than anyone enjoyed. It was all a little much.
So what the Legislature did was cogitate and ponder. It ruminated and considered. Without trying to sound too much like Dr. Seuss, it tried this on and then that. And then someone came up with an idea. "Why not," this clever guy or gal must have said, "don't we treat maintenance in much that same way as we treat support?"
Having not been there, I can't say how this was received. But after what must have been either stone-cold silence or applause, a consensus was reached. And beginning only as far back as you can throw a stone, the Legislature trotted out the freshly painted pony of a new law.
BASICS OF THE NEW LAW
The new law goes like this.
When it comes to awarding maintenance, let's treat it sort of like support. Let's all do some math. Let's take the respective incomes of the separating spouses, figure out who earns what percentage of the total, mix in how long the couple has been married, stir an eye or two of newt and let it spit out a "suggested" amount of maintenance.
However, as Ron Popeil was fond of saying, "But wait! There's more!"
Let's not only figure out how much but for how long. While a very rough rule of thumb used to be that maintenance should or would be paid for about one-third the length of the marriage, now there is mathematical precision. If a couple was married eight years and two months, the suggested maintenance payment will be slightly different than eight years and one month or eight years and three.
SHOOTING FOR CERTAINTY
You'll note I used the word "suggested" twice in the preceding paragraph. That's because while this new twig of the law blossoms into familiarity and practice, the maintenance is only that "suggested" to the court and, at least for now, is not yet mandatory. That said, many judges are persuaded by the number the calculation spits out and follow it if not as strictly as lemmings off a cliff, at least in significant measure.
As in support, the couple is free to work out another deal so long as it is fair and the court approves that it is fair and even-handed.
Think of this new statue as the not-like-Forrest Gump-box-of-chocolates-law. Instead of not knowing which one you might get, certainty is instead, the new and tasty rule.
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. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.