Typically, courts have considered whether to award a spouse retroactive alimony back to the date of service of the summons, as that is the date the court acquires jurisdiction over the parties. But is that date written in stone, or can a court go back further? The issue of retroactive alimony really seems to rub payors the wrong way – just last year, we wrote of a court of appeals decision approving of a retroactive alimony when the spouses were still living in the same house.
That was the issue considered in a published decision by the Colorado Court of Appeals. In Stradtmann, the husband moved out of the marital home upon the spouses separating in February 2019. The following month he filed a petition for dissolution of marriage.
The parties agreed to temporary orders in which the husband would pay the wife temporary maintenance and child support from July 2019 through the permanent orders. Then, at the permanent orders hearing, the district court judge ordered retroactive alimony and child support from February – June 2019 – i.e. starting in February when the parties separated, rather than in March, when the divorce was filed.
The husband appealed, asserting that the trial court lacked jurisdiction to order retroactive support prior to filing in March. The court of appeals upheld the retroactive support order, summarizing its decision as follows:
“As a matter of first impression, we conclude that the broad language of the maintenance statute does not preclude a district court from awarding maintenance retroactively to a date preceding the court’s acquisition of personal jurisdiction over the parties.”Stradtmann, ¶ 2.
If all you need to know is the rule, you can stop here, since the appellate court kindly put that up front. But to read the court’s analysis as to why retroactive alimony can predate the case, read on…
Retroactive Child Support Only to Date of Service
The wife agreed with husband that the trial court lacked jurisdiction to order retroactive child support prior to the date the matter commenced. This is a statutory limitation written into the child support statute, which allows a back support order:
“for a time period that occurred after the date of the parties’ physical separation or the filing of the petition or service upon the respondent, whichever date is latest”C.R.S. 14-10-115(2)(a).
As the wife signed the waiver of service on March 28, 2019, after the petition was filed, that is undeniably the earliest date for which the family law judge could order retroactive child support.
Retroactive Alimony Prior to Date of Service
The spousal maintenance statute, however, does not have a similar provision in it. There was no dispute that the trial court obtained personal jurisdiction over the husband that same date the wife signed the waiver, on March 28, 2019, so therefore no orders could enter against either party until after that date. Stradtmann, ¶ 15.
But that simply means no orders could issue until that date; as long as an order was entered after that date, that did not necessarily mean retroactive alimony for a period prior to that date was precluded.
“But there is an important distinction between the date on which a court acquires personal jurisdiction over the parties and whether, once having acquired personal jurisdiction, it may enter retroactive orders with an effective date predating the court’s authority to exercise personal jurisdiction over the parties.
Here, once the court acquired personal jurisdiction, it possessed the authority to enter enforceable orders for child support and maintenance. After reviewing the maintenance statute, we conclude that the court was authorized to award mother retroactive temporary maintenance beginning in February 2019.”Stradtmann, ¶¶ 16-17 (Cleaned Up).
The court observed that, prior to revisions in 2014, the maintenance statute had a limitation similar to the child support statute limiting retroactive alimony, and which the husband now wanted read into the statute, authorizing back spousal support only to the later of filing or service of process. But that language was removed from the current version of the statute.
Now, the spousal support statute reads: “The court shall determine the term for payment of temporary maintenance.” C.R.S. 14-10-114(4)(a)(II). Accordingly, the family law judge now has broad authority when it comes to retroactive alimony:
“Thus, nothing in the current statute tells the court when it must begin an award of temporary maintenance or restricts the court’s ability to award it retroactively. At the same time, the General Assembly revised the statutory language governing the timing of maintenance awards to state that courts are authorized to award maintenance “for a term that is fair and equitable to both parties.” § 14-10-114(2).
The removal of the restrictive temporal language from the prior version of the maintenance statute and the inclusion of the open-ended language in the current statute has expanded the district court’s discretion in determining a fair and equitable term of maintenance. More specifically, it signifies the legislature’s intent for the district court to retain broad discretion over the starting point for a temporary maintenance award.”Stradtmann, ¶¶ 19-20 (Cleaned Up).
By literally applying the language in the maintenance statute (i.e. doing its job), the court of appeals has nonetheless created a double-standard whereby child support is only retroactive to filing, but retroactive alimony is available for months or more prior to filing. It’s hard to envision a public policy reason for retroactive alimony to be more expansive than retroactive child support, but it is up to the legislature to harmonize the back spousal and child support provisions, not the courts.
All was not completely lost for the husband, however. While he lost on the retroactive alimony issue, he did prevail on the issue of permanent orders maintenance, which was remanded back to the trial court because the court did not make specific findings in support of its award.
For more information, see our alimony in Colorado article in the Colorado Family Law Guide. And don’t forget our free Colorado alimony calculator to see what the Colorado maintenance formula looks like in your case.
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In Stradtmann, the Colorado Court of Appeals…