Two of the biggest areas of contention in divorce are Spousal Maintenance and Child Support. Countless times I have heard from clients either one of these phrases:
- “I am not paying any spousal maintenance to that person.”
- “I want the most [insert an excessive and unreasonable amount] of spousal maintenance and child support.”
- “My friend’s attorney got him this spousal maintenance amount, I want that.”
Support is always a sticking point. However, as an attorney, I make sure my clients have realistic expectations when it comes to these two issues. Luckily, we have the statute to rely on. The purpose behind this blog is to shed some light on how Spousal Maintenance and Child Support are calculated under the statute.
Spousal Maintenance, more commonly known as alimony, can be the most contentious part of divorce. Sometimes we luck out and spousal maintenance evens out to zero because both parties are able to support themselves, but that is rare. There are two different outcomes for spousal maintenance. The parties can strictly following the statute or negotiate an amount. Although, keep in mind, the guideline amount is typically used as a base amount for negotiations.
The statute, C.R.S. § 14-10-114, sets forth a few requirements in determining spousal maintenance. The court considers the amount of each party’s gross income, the marital property apportioned to each party, the financial resources of each party, and the reasonable financial need as established during the marriage. C.R.S. § 14-10-114 (3)(a)(I)(A-C). Essentially what it boils down to is equity and a need versus ability to pay assessment to determine if spousal maintenance is appropriate.
The next step is to use the spousal maintenance formula provided by the statute. The formula uses gross incomes of each party and considers the duration of the marriage. Income can be more complicated than just wages earned. Income can come from multiple sources. A list can be found under § 14-10-114 (8)(a)(II)(c)(I). If a party is unemployed, has the ability to work, but is not yet working, the Court can impute a wage to that person for the purposes of calculating spousal maintenance. A court will either impute a party to an historical income or to a full time minimum wage income. However, there are some exceptions to the Court imputing income to a party. The most common exception involves a health issue that prevents a party from working.
The formula for spousal maintenance, for those who are curious, looks like this:
((Higher Adjusted Gross Income + Lower adjusted gross income) x .40) subtract (Lower Adjusted Gross Income) = Maintenance Amount
However, there is a limit to the amount. The lower income party’s income plus the maintenance amount cannot exceed more than 40% of the combined monthly adjusted gross income. This limitation kicks into play with lower income earners.
Lastly, the spousal maintenance duration is important. Luckily there is a chart attorneys can refer to in the statute rather than having to do the mathematical calculation. For example, a ten-year marriage would have the spousal maintenance term of four and a half years. If your marriage is less than three years, the Court generally does not award spousal maintenance, unless a really good reason exists. If the marriage length is 20 years or longer the Court can apply a specified term of years or even apply an indefinite term.
The aforementioned is the standard. However, a party can always negotiate spousal maintenance. A good rule of thumb for negotiation is to start with the guideline recommendation, then negotiate up or down from there. Again, a large consideration with spousal maintenance negotiations is the distribution of the marital property. A party can negotiate both amount and duration, but at the end of the day, a Judge still must agree that it is a conscionable agreement.
Child Support can be treated similar to spousal maintenance in the sense that there are guidelines, but it can also be negotiable. The child support guidelines can be found in C.R.S. §14-10-115. Child support considers income the same way spousal maintenance does, but there are additional factors considered when calculating child support.
The calculation considers these factors:
- Amount of Children from marriage
- Overnights each parent has with the children
- Gross Income of each party
- Spousal Maintenance paid on prior relationship (Court Ordered)
- Child Support paid on prior relationship (Court Ordered)
- Work Related Childcare Expenses
- Education Related Child Care Expenses
- Share of Children’s health and dental insurance
- Extraordinary medical expenses for children
- Other Extraordinary expenses for children
The Court takes Child support incredibly serious. Unlike spousal maintenance, the Court truly does not care about your ability to pay. Everyone is responsible for monthly bills and expenses, adding child support to the equation is not easy. However, keep in mind the Court does not care. What concerns the Court is whether the children are being cared for. That being said, sometimes it feels as though the Court is placing unrealistic expectations on parties. That means people generally have to reevaluate their monthly budget. Cut out your subscription to Netflix, your weekly trip to the mall, or whatever you have to cut in order to accommodate a child support obligation.
Hopefully, this blog provides some insight on how spousal maintenance and child support are determined. They are both calculated by a formula and not arbitrarily decided. It is contingent on the facts of each case, as well as the ability of the parties to negotiate with each other. Most importantly, the Court must approve of both amounts, otherwise it will ultimately default to the statutory guidelines.