Either you or your former spouse recently had your salary change. Now, one or both of you wants to modify your maintenance, or alimony, agreement. What happens next?
Is our maintenance agreement modifiable?
The first question is whether your maintenance agreement may be modified. Some divorce decrees or spousal agreements restrict the ability of the parties to later modify the maintenance award. If your maintenance agreement is not modifiable, the change in salary will have no effect on your maintenance award.
If maintenance was determined by a court order, it is modifiable. Generally, the court retains the ability to modify a spousal maintenance award.
Will a change in salary affect my maintenance?
The short answer is “it depends.” For maintenance to be modified, there must be a continuing and substantial change in circumstances that makes the current arrangement unfair. A significant increase or decrease in either party’s salary could meet this criteria.
Whether there is a “continuing change” in circumstances is relatively easy to determine. If you or your ex receive a raise or take a new, higher-paying job, that’s a “continuing change” – your increased salary is expected to continue indefinitely. On the other hand, don’t rush out to modify your maintenance agreement if one of you loses your job: job loss is considered temporary and won’t convince a court to immediately modify your agreement. However, if you are still unemployed a few months later, despite a good faith search for a new job, your unemployment may be considered a continuing change.
Whether a change in salary is “substantial” enough to warrant maintenance modification is harder to define. Colorado’s child support formulas define a substantial change as 10% or more. However, there is no similar guidance when it comes to maintenance. In modifying maintenance awards, the court will look at each party’s income and other financial circumstances and try to reach the most fair result.
In modifying maintenance, the court will look at both parties’ incomes and other financial circumstances and try to reach the most fair result.
How is a change in maintenance obtained?
If you believe you are entitled to a change in maintenance, you should request a modified maintenance order by from the court. This is done by filing a Motion to Modify or Terminate Maintenance. The court will review your motion, and may set a hearing to review it. At a hearing, you and your attorney should be prepared to explain why the circumstances justify modifying your current maintenance.
If the court agrees to modify your maintenance, the modification will apply to any maintenance payments due since the Motion to Modify was filed. It will not apply to payments due prior to filing, regardless of when the change in salary (or any other change in circumstances) took place.
If your salary or your ex’s salary has changed and you’re considering whether it should affect your maintenance, a good place to start is the Divorce Matters Calculator App. Using our app to determine what your modified maintenance might be can help you determine if seeking maintenance modification is makes sense for you.