How is Alimony/Maintenance determined?

Short Answer:  Whether to award maintenance and in what amount is determined by examining whether one spouse lacks sufficient property, including marital property, to provide for his or her reasonable needs and is unable to support him/herself through appropriate employment.

Explanation:  The purpose of maintenance is to substitute for financial support during the marriage to ease a lesser income-earning spouse’s transition into the work force and prevent the spouse from becoming dependent on public assistance.  For example, the court may use an award of maintenance as a tool to balance equities and compensate a spouse whose work has enabled the other spouse to obtain an education.  The determination of a spouse’s reasonable needs depends on the particular facts and circumstances of the parties’ marriage. 

In determining whether to award maintenance, the court must make a determination that the spouse requesting it lacks sufficient property, including marital property being divided, to provide for his or her reasonable needs and is unable to support his/herself through appropriate employment.  Appropriate employment is determined based on the facts and circumstances of each case, but essentially the court looks at the person’s earning capacity based on education and experience, as well as the person’s expectations and intentions during the marriage.  Additionally, the court must consider the receiving spouse’s share of the marital property in arriving at its maintenance award. 

The Court bases its findings on the financial conditions, abilities, and needs of the parties as they appear at the time of the divorce hearing rather than on what those conditions might have been in the past or may be in the future.  Therefore, even if the spouse requesting maintenance used to earn a higher income, that spouse may be entitled to maintenance depending on circumstances that exist at the time of the divorce, such as disability.  The court looks at each spouse’s earning capacity at the time of divorce, but will examine all relevant factors such as past earnings.

Maintenance must be requested in the petition for divorce or it is waived.  Therefore, if you are getting divorced, make sure you ask for maintenance in your divorce Petition or Response to the Petition, because if you do not, you may not have the option to change your mind later.  If maintenance is a factor in your divorce, you should hire an attorney to negotiate the terms of your property settlement and maintenance to ensure you receive the most fair settlement.  Contact me through www.taibolaw.com or via telephone at (303) 653-2509 to discuss your individual needs. 

My ex has never paid child support. How far back can I go after him/her for child support?

Short Answer:  Typically, you can get child support as far back as the date you petition the Court to order it.  If you already have a Court order and the payor is not paying, you can go after the full amount owed plus 12% interest.

Explanation:  The Child Support Statute, located at § 14-10-115, C.R.S. states the Court can order child support to begin after the date of the parties’ physical separation (in cases of a divorce), the filing of a petition (for child support, divorce or custody) or the date of service upon the other party of the petition – whichever date is latest.  If you have never had a case in the Court involving this marriage or child, the Court does not have jurisdiction to order the payor to pay child support before he or she is served.  This means, if you file a petition to establish child support, but it takes you a year to serve the other party, the Court cannot order child support until the date the payor is personally served with the petition.

If you already have a Court order for child support, and the payor is simply not paying, you are entitled to the entire amount the payor was ordered to pay, plus 12% annual interest on the arrears.  Additionally, you can file a motion for contempt against the payor or garnish the payor’s wages to get the payor to pay you on time going forward.

Contempt means that a person is not complying with a Court’s orders.  If you have a Court order for child support and the payor is not paying, that payor is in contempt of the child support order.  You can file a motion for contempt, which means you are asking the Court to find the payor in contempt of the Court order, ask the Court to compel the payor to pay, and ask for a sentence of jail or a fine.  Many times, this gets the payor’s attention.  And, if you win on the contempt, the Court will usually award you your attorney fees and costs for having to pursue the contempt to enforce the order.

You can garnish the wages of the payor to pay regular child support and arrears.  The garnishment of wages for child support is called an “income assignment.”  The procedure for doing this depends on the date of your child support order, due to several changes in this area of law.  The most recent change in the law states, for orders entered after 1996, income assignments are to be ordered by the Court automatically, unless the parties demonstrate an income assignment is not necessary.  If the Court did not order an income assignment in your case automatically, you can still get one.  If your ex has a history of not making child support payments on time or in the right amount, this may be a great option for you to save you the cost of filing contempt after contempt against the payor.

If you do not have a child support order in place and want to get one, you should file your petition as soon as possible to get the child support started as of the date you file or serve your ex!  The longer you wait, the more money you are losing. 

If someone owes you child support, or you would like to get a child support order in place, contact me through www.taibolaw.com or by phone at (303) 653-2509 to discuss what options are best for you.  Child support enforcement can be a complicated area.  You should consult with an attorney before deciding which avenue is in your, and your child’s, best interests.