If I’ve Lost My Job Due To The CoronaVirus, Can I Get My Maintenance or Child Support Payments Reduced or Changed?

Have you experienced an interruption to your job due to the coronavirus such as a reduction in hours or loss of job? Can you get your maintenance or child support payments reduced or changed if this is the case and how quickly?

The coronavirus is pushing the country into uncharted waters, jeopardizing nearly half of American jobs. If your work has been impacted by the coronavirus, you may wish to modify the amount of maintenance you are paying your ex-spouse. The first step in tackling this question is to determine whether you can modify maintenance in the first place.

If you and your ex-spouse were able to agree to maintenance as a part of a larger separation agreement, you may have agreed that maintenance is modifiable, or non-modifiable. If the separation agreement states that maintenance is modifiable, then keep reading.

Adversely, if the separation agreement expressly states that maintenance is non-modifiable, then you are unable to request a modification, period. You must pay your maintenance pursuant to the terms of the separation agreement, regardless of changing circumstances.

If maintenance was awarded by the judge at your permanent orders hearing, then it is always subject to modification. This is mandated by Colorado Statutes, which states: “Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.” §14-10-114(5)(a), C.R.S.

In order to modify maintenance, you must meet the legal requirement, which is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” §14-10-122(1)(a), C.R.S.

When dealing with child support, there is a higher bar to meet, as the change must result in at least a 10% difference in owed support. Maintenance, on the other hand, depends on whether you can prove to the court a “substantial and continuing” change in circumstances.

This is not an either-or test; you must prove that the change in circumstances (your lost job, for example) is both substantial and continuing.

What courts look for is a change in circumstances so substantial that it renders the original maintenance award unfair. A modest change to your income is not likely to be seen as substantial, no matter how permanent it may be.

Loss of employment, while immediate and substantial, is usually temporary. If you will likely be re-hired when the pandemic subsides, it is likely premature to file for a modification of maintenance or child support because you will be unable to meet the legal requirement that the change in employment circumstances is continuous, not just substantial.

If you have any questions or concerns about your maintenance or child support call us at 720-542-6142 to speak with one of our attorneys, or fill out our form here.

Because family law is an extremely personal matter we are not eliminating face-to-face meetings at this time. However, we do have virtual and telephonic meetings available and strongly encourage them for anyone who wishes to conduct their consultation via telephone or computer in accordance with social distancing protocols.

Can A Change In Salary Modify Maintenance?

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.