Does Spousal Maintenance Automatically Terminate Upon Remarriage?

Colorado uses the term “maintenance” for what many traditionally call “alimony.” Maintenance is spousal support. Usually maintenance terminates upon remarriage, however parties can agree otherwise. Colorado law generally requires that maintenance will terminate when a spouse marries again following a divorce. According to C.R.S. Section 14-10-122(1), “[u]nless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.”

When parties don’t agree about maintenance, the court will decide whether a party will receive maintenance and what the amount will be. Usually, the court’s decision will clearly state whether maintenance will terminate upon the remarriage of the party receiving maintenance. If the parties do not agree on maintenance or the amount and a Court will decide, it will consider:

• the financial resources of the spouse seeking maintenance, including any award of marital property or child support
• the future earning capacity of the spouse seeking maintenance, and any time necessary for education and training
• the standard of living established during the marriage
• the length of the marriage
• the age and physical and emotional condition of the spouse seeking maintenance, and
• the ability of the paying spouse to meet the financial needs of both spouses.

When the parties are negotiating their own maintenance terms in a Separation Agreement, they are free to agree to provisions that differ from statutory guidelines. It is usually best for parties to negotiate their own agreement because they know what will work best for them. Mediation is often a useful approach to come to a mutual agreement when parties are unable to do so on their own.

Parties who want maintenance to continue after the remarriage of the spouse receiving maintenance should include a Separation Agreement term such as “this maintenance award shall not terminate upon the remarriage of the [husband] [wife] who is receiving the maintenance payments.” Sometimes Separation Agreement terms are subject to dispute. In cases where a Separation Agreement does not specifically say that maintenance terminates on remarriage, Colorado courts have ruled that the maintenance does not terminate on remarriage if the Separation Agreement terms concerning maintenance indicate that the maintenance terms are non-modifiable.

There is a statutorily-set level of temporary spousal maintenance in Colorado, in cases where a couple's combined gross annual income is under $75,000. A temporary orders hearing may result in an award equal to 40% of the higher income earner's gross monthly income minus 50% of the lower income earner's gross monthly income.

Where the combined gross annual income exceeds $75,000, there is no set standard for temporary alimony in Colorado, and instead the courts utilize the factors set out for post-dissolution maintenance. This results in less predictability - while some Colorado divorce magistrates use the 40% minus 50% formula, others disregard it.

Over time, maintenance payments can amount to a very large sum of money. Careful drafting and attorney review can save thousands of dollars. Before signing a Separation Agreement, carefully review it and consider whether it meets your needs.

If you would like to gain an understating of maintenance termination in your particular situation, you should consult with a family law attorney. I can be reached at 719-344-5523.