If My Spouse Earns an Income and Can Support Herself, Is She Entitled to Spousal Maintenance?

It depends.

Colorado has advisory spousal maintenance guidelines, which means that courts have a great deal of discretion in how to apply them. Courts consider a number of factors when fashioning a maintenance award. The purpose of spousal maintenance is to allow a lower-earning spouse to sustain himself after dissolution until becoming self-supporting, if possible. The trend is towards temporary maintenance as opposed to long-term maintenance for those who have the ability to become self-supporting. The first step is to request an award of maintenance in a Petition for Dissolution or Legal Separation.

For those married for 20 years or more, longer-term maintenance is more probable. A party usually must have been married for three years or more to be awarded maintenance absent unusual circumstances; such as one spouse giving up an established career in another state to relocate with the other spouse. Maintenance may include expenses that are based on the standard of living of the parties during marriage and are not limited to subsidence needs.

Additionally, if a party is caring for a young or special-needs child, then she may not be expected to earn an income. Also, income is not necessarily considered to be only what is actually earned, but if a party is underemployed a court can consider what could potentially be earned. If potential earning ability is contested, sometimes a vocational evaluator is employed to determine a party’s potential income and employment prospects. In cases where a party has not been employed for most or all of the marriage, then age, education and experience are considered when evaluating employment potential. Physical and emotional health issues can be considered, however if a party puts his or her physical or emotional health at issue he will need to provide the other party with his medical records.

A court considers a number of factors in determining a maintenance award, however looks first at:

• The amount that each party earns, if any;
• The marital property apportioned to each party;
• Other financial resources of each party, if any; and
• Reasonable financial need as established during the marriage.

The formula for maintenance is generally:

40% of the higher earner’s monthly adjusted gross income
Minus
50% of the lower earner’s monthly adjusted gross income

Courts can only award modifiable maintenance awards, however parties can agree to a nonmodificable maintenance award in a separation agreement. Maintenance terminates upon the death of the obligor or the remarriage of the recipient unless the parties have agreed otherwise. However, maintenance does not terminate upon cohabitation, unless otherwise agreed.

Maintenance awards can be modified upon a showing of changed circumstances that are substantial and continuing, unless agreed to otherwise by the parties. Examples are a severe injury to a party or retirement. The party seeking the modification has the burden of proving the substantial and continuing change in circumstances.

If you would like to have a maintenance assessment conducted based on your particular circumstances, you should consult with an attorney.