Colorado Maintenance Guidelines Not Written in Stone
Colorado’s maintenance statute has an alimony formula applicable at divorce, but as the Colorado Court of Appeals constantly reminds the family law bar – and bench – the statutory maintenance guidelines contained in C.R.S. 14-10-114 are not presumptive, only advisory (i.e. almost like a suggestion, and just one data point for the court to consider). And that distinction means something. While a judge can, should, and usually does apply the presumptive amount of child support from Colorado’s child support guidelines, the same is not true for Colorado’s alimony formula.
With maintenance, a judge who blindly applies the maintenance guidelines without considering all of the statutory factors risks reversal (see this blog post for a discussion of a recent case where the Court of Appeals reversed a trial judge for awarding maintenance based upon the alimony guidelines without considering the other evidence). The guidelines are one factor to consider, but only part of the inquiry, not the end of it.
Maintenance Guidelines Not Applicable For Higher Incomes
A 2019 Court of Appeals decision reversed a trial court which had applied the Colorado alimony formula to a case for high income-earners where the parties’ combined incomes exceeded the $240,000/yr income threshold (or $20,000/mo). Burman.1In re: Marriage of Burman (Colo.App. No. 18CA0271, Sept. 19, 2019) (Unpublished Decision).
In Burman, the husband earned just over $39,000/mo as a radiologist, and the wife was imputed $3750/mo of income, for a combined income of almost $43,000/mo. That income well exceeded the threshold for the advisory alimony formula to apply (at the time, the threshold was a combined income of $360,000/yr, but in 2018 that threshold was reduced to $240,000/yr).
Without real analysis of the maintenance factors, other than a passing mention of a couple of them (e.g. the husband was on the “top of his game”), the trial court awarded the wife $13,404/mo maintenance, based solely upon the calculation from the (inapplicable) maintenance guidelines. The Court of Appeals reversed, holding:
“because the parties’ combined adjusted gross income exceeded $360,000, the advisory guideline did not apply. Instead, the district court was required to consider ‘[t]he factors relating to the amount and term of maintenance set forth’ in section 14-10-114(3)(c).”Burman.2In re: Marriage of Burman, ¶ 10 (Colo.App. No. 18CA0271, Sept. 19, 2019) (Unpublished Decision).
Note that a court is permitted to end up at the same level as the maintenance guidelines (and many, if not most, times that happens), but a discussion of the factors is still required:
“Had the court offered reasons why its subsection (3)(c) findings correlated to the $13,404 award — such as finding that amount necessary for wife to pay her monthly expenses — we might have reached a different conclusion. But the court solely relied on the advisory guidelines to calculate the maintenance amount, which, under subsection (3)(b), it was not permitted to do.”Burman.3In re: Marriage of Burman, ¶ 14 (Colo.App. No. 18CA0271, Sept. 19, 2019) (Unpublished Decision).
Moreover, because the Colorado Assembly did not share why the income cap exists – concern that the awards would be too high? Too low? – the Court of Appeals found it was reversible error to apply the alimony formula to a high-income earner case.
The takeaway? Same as with the other cases where courts were reversed for blindly applying the maintenance guidelines – don’t just rely upon the formula. Have both parties’ sworn financial statements as exhibits in any case where maintenance is contested, and be ready to argue need, ability to pay, a reasonable budget, and the myriad of other maintenance factors contained in C.R.S. 14-10-114.
Why Is There An Income Cap For Colorado’s Alimony Guidelines?
For what it’s worth, I’ve spoken to attorneys involved in the statutory change, and understand that with higher incomes, the resulting tax consequences from maintenance were too inconsistent to have a fixed formula which applied at those higher income levels. Instead, when the wealthy get divorced, they should rely upon a CPA to assist in discussing the positions of the parties after-tax, and after-maintenance, and, presumably, the legislature believes they can afford to hire one.
Child Support for High Income Earners
As with maintenance, Colorado’s child support guidelines also have an income threshold, but it’s higher – a combined $30,000/mo instead of $20,000. And as the Colorado Supreme Court recently ruled, it’s also easier for a court to extrapolate above the child support guidelines, or simply award an amount which exceeds them, than it would be for alimony.
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