Spousal Maintenance: Statutory or Contractual?
Brandi Petterson - Colorado Divorce Lawyer
Individuals facing the dissolution of marriage process often seek to have spousal maintenance awarded to him or her. There are many reasons for wanting to be awarded spousal maintenance, but perhaps the most common reason deals with a disparity in income between the parties. For instance, it is not uncommon for the parties to agree that during the marriage, one party will forego a career, or work part-time, in order to raise the parties’ children and the other party will be the primary “breadwinner.†It is perfectly acceptable for the parties to have defined each other’s role in the marriage. However, it is also understandable that the parties’ may not have considered the long-term ramifications of this type of decision. One of those ramifications may concern how each party will support himself or herself after the divorce is finalized.
As such, the party who cared for and maintained the home and raised the children may have surrendered his or her career to do so. Further, if this was your agreement during the marriage, and suppose you were married for 15 years, you suddenly have to devise a plan to make ends meet on your own. In this instance, you will very likely be seeking spousal maintenance and will have two options: statutory and contractual.
Statutory maintenance is the type which is awarded by the Court. The Court may award maintenance for such amounts and for such periods of time that the Court deems just. The Court will consider several factors, set forth in C.R.S. § 14-10-114, including the financial resources of the party seeking maintenance, which may include marital property apportioned to him or her; the time necessary to acquire education or training sufficient to enable to party who requests maintenance to find suitable employment, as well as his or her future earning capacity; the standard of living established during the marriage; the duration of the marriage; the age and physical and emotional condition of the spouse seeking maintenance; and the ability of the other spouse to meet his or her needs while paying maintenance to the requesting spouse.
Contractual maintenance is the type which results in the parties reaching an agreement about how much maintenance will be paid, and for what duration of time, to the requesting spouse. This may be beneficial to the parties, as it takes the matter away from the Court to decide and eliminates the uncertainty as to what the Court may or may not award. It may also be beneficial because the parties may agree that the contractual maintenance is never modifiable by a Court. Ever. Whether maintenance is awarded by the Court pursuant to statute, or contracted for between the parties without clear language designating the maintenance as non-modifiable, the general rule is that maintenance is modifiable upon a showing of changed circumstances so substantial and continuing as to make the terms unfair.
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Loading ...Spousal Maintenance: Statutory or Contractual?
Brandi Petterson - Colorado Divorce Lawyer
When a party files a dissolution of marriage action, often times they will reach an agreement concerning the allocation of the parties’ property, including their assets and debts. This is known as a Separation Agreement and it may also contain a provision concerning spousal maintenance. This is referred to as “contractual†spousal maintenance.
Imagine that the Court issues a Decree for Dissolution of Marriage. Subsequently, imagine that the parties decide to reconcile their relationship and might even move in together. So what happens to those provisions set forth in your Separation Agreement? Largely, this will based upon the time frame specified in the Separation Agreement that provides for when certain events must happen. For example, the agreement may provide that “within thirty days of the date of the Court’s issuance of a Decree for Dissolution of Marriage, the Petitioner shall sign over the car title to Respondent.†In this situation, whether that provision of the separation agreement is still in effect will likely depend upon whether this provision has been satisfied prior to the reconciliation. However, if your separation agreement addresses on-going obligations, such as the monthly payment of spousal maintenance, whether that provision is still in effect is not as cut and dry.
The Colorado Court of Appeals has consistently held that reconciliation does not automatically terminate a property settlement; however, in determining whether a reconciliation has terminated a property settlement agreement, the trier of fact must ascertain from the evidence whether the parties intended to revoke the agreement upon reconciliation. Morrell v. Morrell, 687 P.2d 1319, 1322 (Colo. App. 1984). Moreover, the burden of attempting to prove that the reconciliation did not terminate the agreement lies with the party arguing for this proposition.
The portions of the separation agreement that have not yet been fully executed are those which may be terminated upon the parties’ reconciliation. This is important to keep in mind if you are intending to reconcile with your former husband or wife. Should the reconciliation head south, the likelihood that the party who was supposed to receive maintenance or other property pursuant to separation agreement may very well try to obtain those payments or his or her share of property.
Therefore, it is important to make your intentions known, just to be on the safe side. If you and your former spouse intend to reconcile, and you are still on the hook for making payments or transferring property pursuant to the separation agreement, it may be wise to put those intentions in writing. For good measure, and depending on the circumstances, you may want to file your intentions with the Court.
(3 votes, average: 4.67 out of 5) Loading ...The Effect of Reconciliation on Separation Agreements
Jason A. Márquez, Colorado Family Law Attorney
Colorado District Courts are not immune to the ongoing recession. Court dockets have become so full that it often takes up to nine months to schedule permanent orders hearings in domestic cases. Accordingly, parties are contemplating the resolution of the marital issues without court intervention at an increasing level. To settle a case without court intervention requires several things, but most importantly, a separation agreement and a parenting plan, when children are involved. Â
Separation agreements come in many forms and often include any legally binding written document signed by both parties that memorializes any agreements the parties have made with respect to the disputed issues. Separation agreements, often referred to as stipulations, are generally filed with the Court and ultimately become the Court’s orders. A good separation agreement should attempt to resolve all of the issues. These issues include, but are not limited to: allocation of debts and assets, resolution of future disputes, spousal maintenance, separate property, insurance and many more. Depending on the complexity and amount of issues in any case, separation agreements can be brief or appropriately lengthy.Â
The amount of conflict and the complexity of the issues often impact the ability of the parties to negotiate, or alternatively, the amount of time the parties will require to conduct a contested hearing in the district court. Lengthy contested hearings are difficult to come by and the courts often prefer to entertain only those issues that are actually in dispute. Therefore, there is often inadequate time to address all of the issues in domestic cases.
It is very difficult for parties to get on with their lives without resolving property distribution, payment of marital debt, spousal maintenance, etc. Separation agreements can be temporary, permanent and be as comprehensive as necessary given the circumstances in each case. Therefore, it is important to draft them with meticulous reflection and insight into the past, present and the future. Experienced domestic attorneys have confronted a multitude of marital issues and have become experts in drafting separation agreements that help decrease the chances of future litigation. When actual agreements are made, the parties often feel they have achieved their goals, which often facilitates the closure they desire.Â
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