Although less common than it once was, with long-term marriages courts may still order maintenance for an indefinite period of time – i.e. with no expiration date. While such awards may colloquially be known as “lifetime” maintenance, that’s not strictly speaking accurate, because either former spouse could still file a motion to modify maintenance, and it is not unusual upon the payor’s retirement for the financial positions to have changed enough to render a maintenance modification appropriate. (See our Maintenance Modification & Termination article in the Colorado Family Law Guide for a more in-depth discussion of the requirements to modify maintenance).
The Colorado Court of Appeals recently reversed a trial court’s decision to terminate maintenance. In Rasmussen,1In re: Marriage of Rasmussen, No. 20CA2117 (Colo.App. Apr. 21, 2022) (Unpublished Decision). the spouses’ 24-year marriage was dissolved in 1991, with the husband being ordered to pay the wife $5000/mo maintenance for an unspecified duration of time.
Twenty-eight years later, the now-retired 81 year-old husband filed a motion to terminate or modify maintenance. The wife opposed the modification, arguing that the husband’s income and assets had grown significantly since the dissolution, so he could afford to continue paying maintenance. The trial court granted the husband’s motion to modify maintenance, and terminated his alimony obligation altogether.
The wife appealed, and the Court of Appeals reversed on several grounds.
Must Consider Financial Resources, Not Just Income, to Modify Maintenance
It’s common for spouses to think of maintenance as being based primarily, or even solely, upon their incomes. Such a belief is not unreasonable – not only does the maintenance statute include a maintenance formula which is based upon incomes, but at dissolution, the marital estate is typically divided equally so the spouses’ assets and debts are similar, and not typically a major factor in maintenance.
But the maintenance statute requires a broader inquiry than just income, when a court is determining spousal support – and at issue in particular in this case was one of the factors: “The financial resources of each party, including but not limited to the actual or potential income from separate or marital property” C.R.S. 14-10-114(3)(a)(I)(C).
In Rasmussen,2In re: Marriage of Rasmussen, No. 20CA2117 (Colo.App. Apr. 21, 2022) (Unpublished Decision). the trial court noted that the husband’s gross monthly income was $23,000, compared to monthly expenses of $19,000, but after factoring in his mandatory and voluntary deductions, the husband had a $5000/mo deficit, so could not afford to pay maintenance.
However, the husband had $5m in total assets which the trial court did not take into consideration. In particular, the court of appeals found error because the trial court did not consider:
- The $5000/mo required minimum distributions from his IRA and 401(k), which were worth a combined $1.3m
- The 6-8% rate of return the husband testified he could reasonably make from his $1.2m of investments
- The husband’s actual dividends received (which are treated as income for maintenance purposes)
Just as the spouses’ financial circumstances beyond income were relevant to determine the initial award of spousal support, so too are they relevant when considering a motion to modify maintenance. See the discussion regarding the requirement to consider all financial resources for a maintenance modification upon retirement in this blog post.
Maintenance Already Paid is Irrelevant to a Maintenance Modification
Most interesting was the trial court’s consideration of the fact that the husband had been paying maintenance for five years longer than the parties had actually been married, and that the wife had already received $1.7m in total maintenance since the divorce. The Court of Appeals rejected this reasoning:
“These facts were not pertinent to the factor under consideration or the ultimate issue before the court. The length of time and amount of maintenance paid were merely a byproduct of the original, valid, unmodified maintenance award, which ordered husband to pay wife $5,000 per month indefinitely. Husband’s compliance with that order, under the circumstances here, does not show that changed circumstances rendered the maintenance award unfair.”Rasmussen.3In re: Marriage of Rasmussen, No. 20CA2117, ¶ 31 (Colo.App. Apr. 21, 2022) (Unpublished Decision).
At Graham.Law, we’ve seen former spouses still paying maintenance when no expiration date was ordered try to modify maintenance because “they’ve paid enough”. Such arguments invariably fail. But this is the first I recall where the Colorado Court of Appeals has weighed in on this issue and found it an irrelevant consideration to determine if it is appropriate to modify maintenance.
The appellate court also noted other considerations irrelevant in a motion to modify maintenance which the trial court improperly considered, including the fact that the wife had never worked since dissolution, and her “unsavvy investment decisions.”
Abuse of Discretion to Hold Parties to Different Standards
In what a layperson may call the “what’s sauce for the goose is sauce for the gander” standard, the court found that the trial court “abused its discretion when it terminated maintenance because it arbitrarily held the parties to different standards.” Rasmussen.4In re: Marriage of Rasmussen, No. 20CA2117, ¶ 35 (Colo.App. Apr. 21, 2022) (Unpublished Decision).
Specifically, the trial judge was critical of the wife using a small excess for charity and to support her grandchildren (combined total under $400/mo), instead of saving for retirement. But the court did not scrutinize the husband’s contribution of $1700/mo to charity, nor his paying expenses for his adult children.
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