A recent divorce hearing resulted in Graham Law’s satisfied client prevailing on almost every issue litigated. Reviewing the basics from this case provide a valuable lesson for those undergoing the stressful process of dissolving a marriage.
Graham Law represented the Husband. During the parties’ 15-year marriage, the Husband significantly out-earned the Wife, and had funded significantly higher investments, while the Wife did not work, nor invest. Both sides, unfortunately, fired off acerbic and profane comments at each other, resulting in a deterioration of their relationship to the point where neither would speak to the other.
The Wife had (briefly) prevailed at the temporary orders hearing, but that victory was fleeting, and Husband prevailed at final orders, where it mattered the most.
Alimony at Temporary Orders vs Permanent Orders
The Husband’s employer provided him a monthly stipend to allow him to find housing for projects he supervised far from home. This was in addition to his regular salary, annual bonuses, and yearly dividends from his company. Colorado law includes in the definition of income both salary, as well as expense reimbursements from an employer which reduce living expenses. C.R.S. 14-10-115(5)(I)(X).
At the temporary orders hearing, the magistrate simply applied the statute without digging deeper (not a ding against the magistrate – temporary orders hearings are necessarily briefer, and the statutory maintenance formula tends to be applied more strictly at that stage of a case). The result was that the magistrate had included all of the Husband’s income and expense reimbursement as income, and the Wife received a relatively high maintenance award.
The Wife was ecstatic… for three months.
Maintenance at Final Orders Hearing
Three months later, the parties had more time to present their cases, and the court considered not just the money coming in, but the expenses the Husband actually had to defray. And it helped that Colorado law provides judges with much greater discretion than when determining temporary maintenance. [C.R.S. 14-10-114(3)], with thirteen different factors the court is to consider when determining maintenance, and even that list is not all-inclusive.
We successfully put the housing stipend in perspective to show why it should be excluded from the Husband’s income. The Husband received this stipend while he was working on out-of-town projects, and the stipend covered his rent/utilities for those projects. It was not appropriate to include the stipend in the Husband’s income because (1) he only received it when he had projects – no project, no stipend. And the Husband needed a place to live while he did not have an out-of-town project, so even while he was away and earning the stipend, he still had the expense of his house back in Colorado.
Moreover, while Husband also received bonuses and dividends, they varied widely depending upon the specific project he was working on. The court considered Husband’s income to be far lower than it was at temporary orders.
Finally, looking at the Wife’s needs, the cross-examination of the Wife showed that if she actually obtained employment, she could meet her financial needs without needing high maintenance from the Husband.
The result? The maintenance our satisfied client was paying at dissolution was a whopping $1200/mo lower than at temporary orders.
Settlements Require Compromise
The law favors settlements, and in this case, the Wife was so emboldened by the alimony awarded to her at temporary orders she refused to consider that at the final orders hearing the outcome may be different.
After temporary orders, when the parties met for court-ordered mediation to try to compromise, the Husband made several proposals which actually tried to address each spouse’s real-world needs. The Wife, however, dug in her heels and refused to settle unless the Husband gave her what she wanted. This is not typically a great negotiating strategy, as it leaves the other party with nothing to lose by going to court, which is what husband did.
The Wife’s intransigence not only cost her (and Husband) attorney’s fees, but she ended up with lower spousal support than the Husband was willing to pay her, had she only agreed to compromise.
Colorado Maintenance is Based Upon Factors, Not Formula
Another teaching point is that Colorado divorce law isn’t completely controlled by the maintenance formula. While the formula is important, it is not intended be strictly applied in every case without looking at the facts.
Courts have broad authority to determine maintenance based upon what is right and fair, not what numbers in a formula say. And Brian’s success was because he showed the judge that Wife’s request to follow strictly the formula would result in an unjust amount.
Award of Attorney’s Fees in a Divorce?
Colorado law gives a judge authority to shift attorney’s fees in a divorce from one spouse to another. C.R.S. 14-10-119. Typically, when this is done, it results in the higher-income earner paying some portion of the lower income-earner’s fees. As the statute is discretionary, not mandatory, Brian successfully argued that the Wife was awarded sufficient property and maintenance to pay for her own lawyer, just as the Husband paid for his attorney.
Please note that past results do not necessarily guarantee future performance. Graham.Law’s attorneys are experienced litigators, and while most of our clients are happy with their outcomes, on each of these issues discussed, different judges with different fact patterns could go the other way.
Finally, there are always unique facts in a case which affect the outcome. Even though the hearing is a public record, in the interests of discretion we are disclosing only the broadest, abstract facts about the case which arose in open court. Graham.Law will never disclose the identity of our client, any confidential lawyer-client communications with our client, nor any of the more unique evidence from trial which may be either personal or help identify the parties.