Category: Alimony

Formerly known as “alimony,” maintenance is financial support given by one spouse to another which is paid as a result of divorce or legal separation.  On May 10, 2013, House Bill 13-1058 was signed into law. This Bill will substantially modify the statute which governs maintenance in dissolution or legal separation cases in Colorado (C.R.S. §14-10-114).  This change to the statute is set to take effect January 1, 2014 and applies to actions in which a petition for dissolution of marriage, legal separation, or declaration of invalidity, or an action for the initial establishment of maintenance is filed on or after January 1, 2014.

Historically, the Courts have enjoyed wide discretion in the award of maintenance, both in amount and duration. The only phase of a case in which a domestic law practitioner had a level of comfort in the likely maintenance award was the temporary orders phase where the parties had a combined annual income of $75,000.00 or less. In that case, the presumptive maintenance amount is calculated by taking 40% of the higher earner’s monthly income and subtracting 50% of the lower earner’s monthly income. This calculation results in a presumptive maintenance for the temporary orders phase only. Cases falling outside of this limited circumstance were subject to very wide discretion of the Court. Indeed, a similar set of circumstances may receive a far different maintenance order by one judge than another.

The Colorado legislature enacted H.B. 13-1058 to establish a more detailed statutory framework, including advisory guidelines for the amount and term of maintenance in certain cases.  The hope is a more fair, equitable and consistent maintenance order across Colorado. Time will tell if this stated goal is accomplished.

The new changes insert a guideline for maintenance amounts and duration for parties with a combined annual gross income of up to $240,000.00 whose marriage has lasted between 3 years and 20 years. The guideline is a grid incorporating months of marriage and a guideline term of maintenance. At first review, the changes seem to favor lower-earners. The maintenance guidelines result in maintenance length and amounts much higher than many jurisdictions in the Front Range are accustomed. Upon a closer review, however, there are many exceptions to the guidelines written into the statute. The maintenance guidelines are not a presumptive amount; they are merely guidelines. Courts still retain the ability to review each case for equity. Further, the Court must still consider many of the same factors in entering a maintenance order as contemplated by the previous maintenance statute. Likely, courts will hear argument as to why the maintenance guidelines should not apply to nearly every case litigated in Colorado.

Time will tell if the new modifications result in a more predictable system of maintenance or if the new changes are used as little more than a starting point to interpret the old system of maintenance. More predictability and less litigation? We shall see.

For more information contact: William E. Smith, Esq. 720.542.6142 www.Divorce-Matters.com

So, you have a Child Support Order and/or Maintenance Order in place.

One problem; you cannot collect the past due amount. While there are many ways to collect support in Colorado, all too often, the person obligated to pay support does everything in their ability to avoid paying the obligation. The Colorado Court of Appeals has recently upheld a process to allow past due child support and maintenance collection from the obligated party’s employer-held retirement account. See IRM of Drexler and Bruce, Jr., 2013 COA 43 (Colo.App.2013).

What type of Retirement Accounts Can I Pursue?

There are many types of financial accounts. This post deals only with employer-held retirement accounts.

The recent Colorado Court of Appeals decision affirms collection from employer-held retirement accounts. These are commonly 401(k) or pension accounts. Please note that the law surrounding retirement accounts is fairly complex. Further, some retirement plans, such as PERA, present special challenges.

How can I Collect?

If a party is behind on support payments, the first question is whether you have a valid, enforceable support order (hopefully, the answer to this question is “yes”).  Next, you must determine whether or not the obligated party has retirement accounts to pursue. If the obligated party has employer-held retirement accounts, you must request that the Court enter a Qualified Domestic Relations Order (QDRO) to collect the arrearages from the retirement plan.

Your request to the Court must comply with the Colorado Rules of Civil Procedure.

A QDRO is a domestic relations order that creates or recognizes a person’s right to receive all or a portion of the benefits payable to the plan participant (here the obligated party) under a retirement plan. A proposed QDRO must be drafted in a way that meets the particular retirement plan’s requirements and specifications.

A QDRO may be used to enforce maintenance and child support obligations for which you have a valid and enforceable Court order.   If the Court grants your request for a QDRO, you must submit exactly what the retirement plan requires directly to the retirement plan for collection.

Conclusion

In an ideal world, you can expect to receive child support and maintenance payments as the Court ordered. However, some people will do anything to avoid their obligations. There are many options to collect past due support, depending on the circumstances. Which option makes the most sense in your particular case requires an analysis of all possible options. The above information gives a very basic outline of one such option to collect past due support.

For more information contact Divorce Matters.

720.542.6142.

www.divorce-matters.com