Cash & Legislation: After the upkeep has been granted, there’s a excessive bar to vary | enterprise

Divorce law is mostly about children and money (and occasionally the family’s pet). On the money side, in most divorce cases, spousal support, sometimes referred to as support, is of significant importance. A spouse’s maintenance order causes one of the divorcing spouses to pay the other spouse a monthly amount to further the goal of justice and to enable a lower-income spouse to maintain roughly the same standard of living as before the divorce.

So how does a court decide who will receive spousal maintenance, the amount and duration of payments, and who will pay? And what if circumstances change after a divorce that affects the fairness of a previous spouse’s maintenance waiver?

Well, Colorado along with many other states passed the Uniform Dissolution of Marriage Act that seeks to resolve these issues. If there is a difference in income between the spouses and the lower income spouse applies for spousal support, the law requires the court to examine and determine several specific factors, in particular “the amount of gross income of each party”; “The amount of the marital property attributable to each party”; “The financial resources of each party, including but not limited to actual or potential income from separate or conjugal property”; and “reasonable financial needs identified during the marriage”. A court is then given considerable discretion in drafting a maintenance award, even though the law contains “guidelines” that courts often follow.

For changed circumstances, the law allows one party to apply for change to a previous spouse’s maintenance. For such a request to be successful, however, the relocating party must “demonstrate changed circumstances so significantly and persistently that the existing conditions become unfair”. This is, according to the courts, a more demanding standard than the standard that applies to the initial award of spousal support and is intended to “prevent amendments from being tabled whenever a party’s earning capacity or needs change. ”

A request to change an original maintenance order was at the center of a recent decision by the Colorado Court of Appeals. In this case, the original spouse maintenance allowance was $ 20,000 per month and was awarded at a time when the husband was CEO of an emerging high-tech company called Hybir.

But then Hybir got into difficult times and the man’s income was cut significantly by the company’s board of directors. In his amendment, the husband requested that his maintenance obligation be reduced to $ 5,133 / month. The woman objected, saying that with this lesser amount of child support, she could no longer adequately care for the couple’s four children and could no longer afford the $ 5,800 monthly mortgage on their house.

A magistrate – a kind of judge with limited powers – denied the request, and the husband appealed to the court of appeal. Among other things, the judge came to the conclusion that THE husband had become “voluntarily underemployed” and thus deliberately evaded his spouse’s maintenance obligation. That included spending too much time with a friend in Louisiana, the judge said. The magistrate further suggested that THE husband, as CEO of Hybir, could have fired other employees and taken over their duties, thereby increasing his working hours and, presumably, his income.

Regarding the idea, the appeals court said, “We are not aware of any precedent in Colorado that would allow a court to order a party to fire employees … and take their jobs and salaries in order to perform a maintenance obligation.”

Bottom line, the appeals court ruled that many of the magistrate’s judgments were unsupported (aka off the wall) or irrelevant to the evidence. The court referred the case back to the first court for further action to clarify relevant facts and correctly apply the law.

Jim Flynn works for Flynn & Wright LLC in Colorado Springs. Email him at

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