“It’s Cheaper to Keep Her (Him)”
The above quip was actually voiced by a state legislator in response to my testimony regarding then proposed changes to the maintenance law in Colorado. In all honesty, I testified against the bill in both the House, and Senate Judiciary Committees of the Colorado General Assembly, however, my concerns were not enough to derail the law, which went into effect for all divorces filed on, or after January 1, 2014. This new law applies to marriages of at least 3 years, and it establishes a formula to determine the amount and duration of maintenance in divorces. I will explain these formulae below, but before going on it is helpful to understand what the law was before, and how the new law has changed it.
Historically, alimony in Colorado has been based upon the requesting spouse’s need. In abbreviated fashion, if a spouse was able to prove to a Judge that he/she couldn’t meet his/her reasonable needs from the income they derived at an “appropriate” job, the Judge could order the other spouse to pay alimony to help make ends meet. Quite simply, if a spouse could prove that he/she couldn’t afford to pay the bills, the Judge could order the other spouse to pay alimony to fill the gap. This underlying theme of “need” has not been eliminated, but it is no longer the sole focus for the Judge when deciding an alimony request.
The new law does not eliminate “need” as a factor, however, before addressing this issue the Judge must first perform a simple math calculation, as a starting point, before delving into all of the same “need” factors that have existed for many years. The math problem is very elementary: the higher earner’s income is multiplied by forty-percent; the lower earner’s income is multiplied by fifty-percent, then subtract the lower from the higher for the magic number. Unfortunately, it can never be so simple, as there is a “cap” on the amount of maintenance in the statutory formula, as explained below. Before jumping to the exceptions/limits to this approach, let’s put this into perspective. Let’s say Hubby earns $8,000/month gross (all computations are based on “gross” income, not “net,” or “take-home” pay). Wifey earns $2,000/month. Forty percent of Hubby’s is $3,200; and fifty percent of Wifey’s is $1,000. Subtracting Wifey’s from Hubby’s results in the amount of $2,200/month in preliminary, formulaic maintenance/alimony. But, we are not there quite yet. The folks who invented this law apparently believed that it wouldn’t be fair for the alimony recipient to ever end-up with greater than 40% of the two spouses’ total “family” income. So, in the aforementioned example, the two incomes together total $10,000. Forty percent of this combined “family” income is obviously $4,000. Since Wifey already earns $2,000, her alimony, when added to her earnings cannot exceed the $4,000 “cap.” So, after applying the “cap,” she can only be awarded $2,000, which, when added to her earnings, equals 40% of the combined family income. Frankly, the law could have been simplified by stating: Multiply the two spouses’ combined earnings by 40%, then subtract the lower earner’s income, and this is the formulaic amount. (I make this bold statement because I have yet to discuss this with a Judge, or attorney who has performed the calculation and not had to reduce the preliminary amount, due to the 40% cap seemingly applying in virtually all situations).
Next, the question is how long does this amount have to be paid. The statute has a chart that provides a gradual increase in the duration depending upon the length of the marriage. Beginning at the minimum of three years, the formula says 11 months, or 31% of the length of the marriage. The graduated scale maxes-out at 50% of the length of the marriage for all marriages of 12.5 years, or more.
The good news is that this is only a starting point, not the end of the inquiry. The law demands that the Judge perform this calculation as an absolute, at the commencement of the hearing. Then, however, the parties can testify about why this amount and duration should, or should not become the order of the Court, based upon all of the historic factors that existed prior to January 1, 2014. The law actually states that the formula is not a “presumption,” which roughly translates to it not being “automatic.” Unfortunately, this language is not that easy to force a Judge to accept (or to convince many divorcing spouses, who become fixated on this amount once it is calculated). Frankly, in the time passing since the law was passed, I have noticed more Judges, than not, adhering to the formula far more strongly than I believe the legislature intended. The benefit of simply applying the formula automatically, is that less time is spent in court, and more cases supposedly settle out of court, due to clients not wanting to spend the money to try to convince a Judge to deviate from the formula. From my perspective, the disadvantages are equal to, or greater than the advantages, as a few examples will illustrate.
First, it is important to remember that “fault” is not a factor in Colorado divorces. So, a Husband who has cheated on his Wife from the wedding night forward can still be awarded significant alimony, based mostly on his income being lower than his Wife’s. The Judge cannot admit evidence into the hearing about his womanizing, lies, cheating, or other debauchery that would certainly seem to suggest that such an order would be very unfair under the circumstances. Again, not only is this type of behavior not to be considered by the Judge, it can’t even be mentioned in court! This is not the only reason for my belief that formulaic maintenance should always be a last resort, not the first consideration.
True story (with some poetic license/spice): I represented a Wife who earned about $20,000/month. Her Husband of 19 years had never applied himself, so at best we could have proven in court that he earned about $5,000/month. The formula would have resulted in about $5,000/month for Hubby for about 10 years. (Forty percent of $25,000 equals $10,000, minus Husband’s $5,000 earnings, equals $5,000. And, because they had been married longer than 12.5 years, the duration was half of the 19 year marriage). Anyway, not only was Hubby a tad bit lazy, he had emotionally abused my client for most of the marriage, and when the abuse escalated to physical assault, she filed for divorce. However, just like the philanderer example above, evidence of abuse is not a consideration in the new maintenance formula statute. It is not a statutory consideration. (Wow, for the “pleasure” of being abused for 19 years, the new statute would “award” my client with the burden of paying her ex Hubby $5,000/month for 10 years!).
Of course, the above examples represent the extremes, but how about a less striking example. Let’s say Husband earns $20,000/month; and Wife earns ….. (sorry, due to professional deadlines, there will be more to come soon!)