A hand holding a fountain pen over a check made out for spousal maintenance

Maintenance defense: the case before the order is written.

The formula is advisory. The court has to find need before it orders a dollar. Above $240,000 there is no formula at all. Five strategies, a payor’s calculator, and the checklist I hand every client.

→Maintenance calculator
01Make them prove it
02Count what they could earn
03Take the formula off the table
04Win it at temporary orders
05Trade property for time
→The vocational assessment
→Already paying? Ending or reducing it

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Know the number you are defending against.

The advisory formula is where every negotiation starts. Run it with your spouse’s actual income, then with the income a vocational evaluation would assign, and see how much of the case is the second number.

Open the maintenance calculator →

Maintenance and child support togetherIf there are children, run both in one pass: maintenance is set first, then child support on the incomes after it. How long it runsThe advisory term from the months of marriage, from three years to twenty and beyond.

Somebody writes this check every month. Before it is you, the other side has to prove they need it, and prove it for as long as they ask.

The number arrives before the lawyer does. A spreadsheet from the other side, a worksheet a mediator ran, a figure your spouse heard from a friend. By the time most payors call me they are negotiating against that number as if it were the law. It is not. Colorado’s guideline is advisory, the court has to make findings before it can order anything, and above $240,000 of combined income the formula for the amount does not apply.

I have litigated maintenance for thirty years, first in California and now in Colorado, and the pattern does not change. The side that builds the record wins. The side that argues about a worksheet loses. This page is how I build the record for the spouse who will be writing the check.

A blank check with the amount written in: twenty-four thousand eight hundred dollars, memo spousal maintenance — The number they will start from

Findings before a dollar

That your spouse lacks enough property to meet reasonable needs, cannot be self-supporting through appropriate employment, and that the award is fair to both of you.

$240,000

Where the formula stops

Combined annual income above which the guideline amount does not apply. Two Denver professionals, or one owner’s K-1, clear it without trying.

50%

The most of the marriage

The ceiling on the guideline term until twenty years. The term is where the money is, and it is fought separately from the amount.

Maintenance Calculator

Colorado · payor’s edition

The number they will start from, and what happens to it when the court counts what your spouse could earn.

Put in both incomes and the length of the marriage. This is the statute’s advisory formula, nothing more. Then move the slider to see the difference a vocational assessment can make.

Maintenance calculatorC.R.S. § 14-10-114(3)(b) · advisory

Your monthly gross income

Your spouse’s monthly gross income

Length of the marriage

yearsmonths

If the court found your spouse could earn

$4,000 a month

Advisory guideline amount

—

Guideline term

—

C.R.S. § 14-10-114(3)(b)

The guideline is advisory.

It does not create a presumptive amount or term.

Monthly guideline amount · combined income of $240,000 a year or less

(0.40 × combined monthly income) − lower earner’s monthly income

then × 0.75, or × 0.80 if combined monthly income is $10,000 or less. A negative result is zero.

Above $240,000 of combined annual income the statute says this calculation does not apply. The calculator keeps running the formula past the line, the way it is used in practice as a reference, and flags it.

Before any number, the court must find need and an inability to be self-supporting through appropriate employment.

Most people who pay maintenance never make the other side prove either one.

Worked example · inside the guideline

The math they start with.

Not the law. The starting point.

Your monthly gross income	$14,000
Your spouse’s monthly gross income	$4,000
Combined monthly income	$18,000
40% of combined	$7,200
Minus the lower income	$3,200
× 0.75 (combined over $10,000 a month)	$2,400
Guideline term, 12-year marriage (49%)	71 months
What the worksheet says you pay	$170,400

Term is a separate finding. Amount and duration each need their own record, and both are advisory.

Five strategies for the spouse who will pay.

In the order I use them. Each one is written into the statute; none of them happens by itself.

A sworn financial statement beside a household bank statement and a credit card summary, post-separation expenses circled in red

Strategy one · Entitlement

Make them prove it.

A maintenance claim starts as a sworn financial statement, and a sworn financial statement is a claim, not a need. The court cannot award anything until it finds that your spouse lacks enough property, including the marital property they are about to receive, to meet reasonable needs, and cannot support themselves through appropriate employment. No finding, no award. Then the need itself: reasonable need as established during the marriage, not a budget written after the separation.

What I do

Test every line of their financial statement against what the household actually spent
Depose your spouse on the expenses that appeared after the separation
Put the property they are receiving next to the need they are claiming

A résumé, an application confirmation and a vocational assessment report on a desk beside a laptop

Strategy two · Earning capacity

Count what they could earn.

If your spouse is voluntarily unemployed or underemployed, the maintenance statute (C.R.S. § 14-10-114(8)(c)(IV)) says maintenance is calculated on potential income, not reported income. Colorado courts have imputed income to a lawyer who took up cattle ranching, an attorney picking apples, a teacher who would not go full time, an executive who would not travel. But a judge cannot guess. The finding has to rest on evidence of what the person can do and what it pays, or it gets reversed.

What I do

Retain a vocational expert early, not on the eve of the hearing
Discovery on the job search: applications, rejections, LinkedIn, recruiters, the résumé they are not sending
Ask for an express finding of underemployment, and a step-down that follows the expert’s timeline

A calculator showing 240,000 with a red X painted over it

Strategy three · The $240,000 line

Take the formula off the table.

Above $240,000 of combined income (C.R.S. § 14-10-114(3.5)) the guideline calculation does not apply to the amount. The court decides from the statutory factors and the evidence, and it may not run the formula on a bigger number and call that an answer. That turns maintenance into an evidence case, and evidence cases go to the side that builds the record: the marital lifestyle, real earning capacity on both sides, and what income actually is when a business is involved. Your own reasonable needs are a statutory factor too.

What I do

A lifestyle analysis of what the marriage spent, not what the financial statement says it needs
An income analysis that does not count the same dollars once in the valuation and again in maintenance
Your side of the ledger: normalized income, not the best year, and what is left after your own needs

A calendar with the first of the month circled and a stamp reading Temporary Orders, subject to further order of court

Strategy four · Timing

Win it at temporary orders.

The first number tends to stick. A temporary maintenance order sets the range for everything that follows, and the months you have paid under it are a factor in the final award. Most payors treat temporary orders as a formality and start fighting at permanent orders, when the judge has already watched them pay a number for a year without complaint.

What I do

Get the financial statement right before it goes out. It is testimony
Retain the vocational expert before the temporary orders hearing, not after
Pay the order on time and fight the amount, not the payment. A missed payment is a judgment the day it is due

A model house, a set of keys, and retirement and brokerage account statements on a desk

Strategy five · Amount and term

Trade property for time.

Amount and term are two fights, and the term is where the money is. Each needs its own findings, and the guideline term never reaches more than half the marriage until twenty years. The statute also lets the court award more property to the other spouse specifically to reduce or eliminate maintenance. A larger share of the estate, a shorter fixed term, a step-down, a lump sum: each trades something, and the right one depends on cash, taxes and risk on both sides.

What I do

Price every settlement after tax. Maintenance is paid with after-tax dollars now
Draft the end: the events that terminate it, the words that keep it modifiable or close it, and the life insurance that shrinks with the balance
Model the step-down against the vocational timeline so the judge sees a plan, not a plea

The side that builds the record wins. The side that argues about a worksheet loses.

If you will be the one writing the check, talk to me before you agree to a number →

What is a vocational assessment, and when can it reduce maintenance?

A vocational assessment, called a vocational evaluation in court papers, is an expert’s opinion on what your spouse is able to earn. Not what they earned last year, and not what they say they can find, but what a person with their education, licenses, work history and health can be paid in the Denver labor market today, and how soon. It is done by a vocational expert, usually a rehabilitation counselor who testifies in family cases, and it ends in a written report with a salary range, the jobs it rests on, and a timeline.

It matters because Colorado maintenance runs on income. If the court finds your spouse voluntarily unemployed or underemployed, maintenance is calculated on potential income instead of reported income (C.R.S. § 14-10-114(8)(c)(IV)). The assessment is the evidence that finding needs. Without it, a judge is being asked to guess, and judges do not. With it, the income that goes into the formula changes, the term can be shortened to match the expert’s timeline, and a later modification has a benchmark to measure against.

If your spouse will not cooperate, I ask the court to order the evaluation, and I ask early, because the expert needs weeks to survey the market and write, and a report finished the week before the hearing is easy to attack. It cuts both ways: if your own income dropped before the case was filed, expect the other side to ask for an evaluation of you.

When it helps

The cases where it moves the number.

A degree, license or trade your spouse is not using
Out of the workforce for years, but the children are in school
Part-time by choice, when full time is available
A switch to a lower-paying field during the separation
A claim they cannot work, with no medical evidence behind it
Hours cut, or a job quit, after the case was filed
A temporary order set on an income of zero

When it will not

The limits the statute sets.

A documented physical or mental incapacity
Caring for the parties’ child under thirty months
A good-faith career change, or a genuine degree program the statute protects
A spouse already earning close to what the market pays
An evaluation started too late to survive cross-examination

How it works

A vocational expert going through a skills inventory with the person being evaluated

Records and interview

Résumé, degrees, licenses and work history, then a meeting with your spouse about why they are not working, or not working more.

A hands-on aptitude test at a workbench, timed by an evaluator

Testing

Aptitude, interest and transferable-skills testing where it helps: what the person can do, not only what they have done.

An analyst reviewing labor market data on two monitors

Labor market survey

Real openings in the Denver metro, what they pay, what they require, and whether employers are hiring.

Report

A written opinion: an earning range, the jobs it rests on, and how long it should take to get there.

A vocational expert presenting earning capacity findings to a conference room

Testimony

At temporary orders, permanent orders or a modification hearing. Expect the other side to answer with its own expert.

The same testimony usually supports a step-down: a higher number for the first year while the spouse re-enters the workforce, then less once they should be self-supporting. That is often more persuasive to a judge than asking for nothing. The exceptions, and the cases where Colorado courts have imputed income, are in C.R.S. § 14-10-114(8)(c)(IV)–(V) and the fold below. The full guide, with the statute, the cases and how I cross-examine the other side’s expert: vocational assessment in a Colorado divorce.

What I tell every payor at the first meeting.

Six things, in the order they come up. None of them is a secret. All of them get ignored.

Across a conference table from her lawyer, a woman listens, a closed folder in front of her, the foothills in the window

Do not negotiate the number until the record exists.
The first proposal sets the range. If the other side’s worksheet is the only document in the room, you are negotiating against yourself.
Your financial statement is testimony.
Pad it, round it up, forget an account, and you lose the judge on everything else. Precision on your side is what makes their inflation visible.
Pay the temporary order. Fight the amount.
A payment you skip becomes a judgment the day it is due, and a payor in arrears has no credibility on need.
Your income counts too.
Quit, take a pay cut, or park money in a company you control, and the court can count what you could earn. Potential income cuts both ways.
Judges reward the organized, calm payor.
Colorado is no-fault. Unless there was abuse the statute now counts, who ended the marriage is not evidence. Bring records, not grievances.
The term is worth more than the amount.
A smaller monthly number over a long term costs more than a bigger one that ends. Most payors negotiate the wrong variable.

The payor’s checklist.

Before the first meeting

Bring the record.

Three years of tax returns, with W-2s, K-1s and 1099s
Recent pay stubs and any bonus, equity or deferred compensation plan
A year of household bank and card statements, or the budget you actually lived on
Your spouse’s résumé, degrees and licenses, and what you know about their job search
Any prenuptial or postnuptial agreement
Retirement and brokerage statements for both of you
Any temporary order or agreement already in place

Before you agree to any number

Eight things that should be done first.

Their claimed need tested line by line against the marital spending
A vocational assessment done, or ruled out for a reason
Combined income placed above or below $240,000, on the evidence
Every source of income on both sides listed, including what property produces
The property division run before the maintenance number, not after
The term and a step-down modeled against the vocational timeline
The after-tax cost of every proposal calculated
Termination events, modifiability and security drafted, not defaulted

Two different cases.

Which one you are in decides how the fight is run. The line is $240,000 of combined annual adjusted gross income.

	Inside the guideline	Above $240,000
Who	Marriages of three years or more, combined income of $240,000 or less	Combined income over $240,000, at any length of marriage
The amount	The formula gives a starting number; the court must still find it fair	No formula. The court decides from the statutory factors and the evidence
The term	The guideline table, with discretion around it	The court may look at the guideline table; it is not bound by it
What the fight is about	Whether the formula’s result is fair, and whether need and employability are proven at all	Everything: lifestyle, need, earning capacity, every source of income, the property each side takes
What I do	Attack entitlement first; make them prove need; put the vocational evidence on the record	Build it like a damages case: lifestyle analysis, vocational evaluation, income and property analysis

How long the guideline runs.

Length of marriage	Guideline term	Share of the marriage
Under 3 years	No guideline; the court decides	—
3 years	11 months	31%
5 years	21 months	35%
8 years	39 months	41%
10 years	54 months	45%
12½ years	75 months	50%
15 years	90 months	50%
20 years	120 months	50%
Over 20 years	A term of years, or indefinite; not under 120 months without findings	—

C.R.S. § 14-10-114(3)(b)(II). Advisory. The term is where the money is: a shorter term or a step-down is often worth more than a smaller monthly number.

Six things payors get wrong.

The formula is the law.

It is advisory. The court must find need and employability first, and must reach a result that is fair to both sides. Above $240,000 there is no formula for the amount at all.

Living together ends it.

Remarriage or a civil union ends maintenance. Cohabitation does not, by itself. It can support a modification when the new household changes your ex’s finances.

The affair changes the number.

Colorado is a no-fault state, and maintenance is set without regard to marital misconduct. The exception is abuse the statute now counts. Everything else is financial evidence.

At least it’s deductible.

Not for decrees after 2018. You pay with after-tax dollars, and the formula’s 75% or 80% multiplier is the statute’s way of admitting it.

They earn less, so they get it.

An income gap is not entitlement. The court has to find they lack enough property to meet reasonable needs and cannot support themselves through appropriate employment. That is where most maintenance claims are beaten.

A vocational expert is overkill.

It is the only evidence that lets a judge count what your spouse could earn. Without it, the court uses the income on the financial statement, which is often zero.

When an existing order can change.

A maintenance order can be modified on changed circumstances so substantial and continuing that the old terms are unfair (C.R.S. § 14-10-122(1)(a)). If your agreement made maintenance contractual and non-modifiable, most of this door is closed, so read it before you file.

The full page for payors under an existing order, with the six triggers and the procedure: Modify or end spousal maintenance in Colorado.

File when the change happens. A modification generally reaches only payments that come due after the motion is filed.
Remarriage ends it. Unless you agreed otherwise in writing or the decree says otherwise, maintenance ends on the recipient’s remarriage or civil union (C.R.S. § 14-10-122(2)(a)).
Cohabitation doesn’t end it automatically. Living with a new partner is not remarriage (In re Marriage of Dwyer, 825 P.2d 1018 (Colo. App. 1991)), but a household that changes your ex’s finances can support a reduction.
Retirement. Retire after reaching full retirement age and the law presumes the retirement is in good faith (C.R.S. § 14-10-122(2)(b)).
Lost income. A real, lasting drop in your income, or a big rise in theirs, is the classic changed circumstance. A voluntary one usually is not.
Life insurance can shrink too. An order to carry insurance as security can be modified or ended along with the maintenance it secures (C.R.S. § 14-10-114(6)(c)).

A spousal maintenance check with a fountain pen resting on it

Four situations I see · Cases where Colorado courts imputed income · Settlement structures that end maintenance sooner · How I prepare a maintenance case

Four situations I see.

Illustrations, not case results. Every case turns on its own facts.

The unused license. A spouse who left nursing twelve years ago to raise the children asks for maintenance on a $0 income. The vocational evaluation shows the license can be reactivated in months and the Denver market pays in the nineties. The case becomes potential income and a step-down, not a decade of full support.

The K-1 that says one thing. An owner’s K-1 shows $600,000, but the company retained most of it for a build-out. Combined income is over $240,000, so there is no formula. The fight is over what his income really is, and whether the same dollars are being counted once in the valuation and again in maintenance.

Twenty-two years and a retirement date. A long marriage where the other side asks for indefinite maintenance. The record I build is a fixed term with an end point at full retirement age, when the good-faith presumption starts, and property in place of part of the monthly number.

The new household. An ex has lived with a partner for two years who pays the mortgage. Cohabitation alone does not end maintenance, but the shared bills go straight to need. The motion to modify is filed the month the facts are confirmed, because it reaches only payments due after filing.

Colorado courts do impute income.

Support cases where the Court of Appeals upheld a finding of voluntary unemployment or underemployment and a calculation on potential income:

A licensed attorney who put his license on inactive status and worked seasonally at an orchard. Income imputed at his capacity as a mechanic. In re Marriage of Elmer, 936 P.2d 617 (Colo. App. 1997).
A lawyer who lost his firm job and took up cattle ranching that earned nothing. Income imputed at his prior legal earnings. In re Marriage of Bregar, 952 P.2d 783 (Colo. App. 1997).
A mother with bachelor’s and master’s degrees who substitute-taught part time while a full-time certificate was within reach. Income imputed at a full-time teacher’s pay. In re Marriage of Zisch, 967 P.2d 199 (Colo. App. 1998).
An executive who declined positions that required travel and had not pursued consulting. Income imputed at his prior earnings. In re Marriage of Yates, 148 P.3d 304 (Colo. App. 2006).

The maintenance statute uses the same potential-income rule (C.R.S. § 14-10-114(8)(c)(IV)), with the same exceptions: no potential income for a spouse who is physically or mentally incapacitated or caring for the parties’ child under thirty months, and a good-faith career choice or a genuine degree program can defeat it (C.R.S. § 14-10-114(8)(c)(V)). The lesson from each case is the same: the finding was upheld because the record showed what the person could do and what it paid.

Settlement structures that end maintenance sooner.

A shorter fixed term. Step-down payments. A lump sum in place of monthly payments. More property in exchange for less maintenance, or none. Each one trades something, and the right one depends on cash, taxes and risk on both sides.

Then the drafting. By statute, unless the parties agree otherwise in writing or the decree says otherwise, maintenance ends at the death of either party, the end of the term, the recipient’s remarriage or civil union, or a court order (C.R.S. § 14-10-122(2)(a)). Words like “contractual and non-modifiable” change what can happen later, and courts read them closely. I write termination terms with the end in mind, not as boilerplate.

How I prepare a maintenance case.

I treat it like a damages case. A lifestyle analysis of what the marriage actually spent. A vocational evaluation of what the other spouse can earn. The full income picture on both sides, including business income, so the same dollars aren’t counted once in a valuation and again in maintenance. A property analysis of what the other spouse walks away with. Then I make the other side prove need, amount and term with evidence, instead of treating a worksheet as the answer.

The court has to make specific findings on the statutory factors, including reasonable need as established during the marriage, to support both the amount and the term (C.R.S. § 14-10-114(3)(e)). An award entered without them gets reversed on appeal (In re Marriage of Wright, 2020 COA 11). A record built for those findings is how a maintenance case is won, and how it is kept.

Run the numbers

Maintenance calculatorThe guideline, for either spouse Payor’s editionThe same formula from the paying side Duration calculatorThe term, from the months of marriage

What payors ask first.

Can I avoid paying maintenance entirely?

Sometimes. A court can award maintenance only if it finds the spouse asking for it lacks enough property, including their share of the marital estate, to meet reasonable needs and cannot support themselves through appropriate employment. If those findings can’t be made, there is no award. When they can, the fight moves to the amount and the term, and both have to be supported by findings.

What is a vocational assessment, and do I need one?

A vocational assessment, called a vocational evaluation in court papers, is an expert’s opinion on what your spouse can earn in the Denver labor market today, based on their education, licenses, work history and health, and how soon. It is the evidence a court needs before it can calculate maintenance on potential income instead of reported income. If your spouse is not working, or working well below what they are trained to do, you probably need one, and early.

My spouse stopped working years ago. Can the court count what they could earn?

Yes, if the court finds they are voluntarily unemployed or underemployed. Maintenance is then calculated on potential income, not reported income. There are exceptions: incapacity, caring for the parties’ child under thirty months, a good-faith career choice, some degree programs. The proof comes from a vocational evaluation and discovery, not from argument.

Our combined income is over $240,000. Does the formula apply?

Not by statute. Above $240,000 of combined annual adjusted gross income the guideline calculation does not apply: the court decides the amount from the statutory factors and the evidence, and it may still look at the guideline term. In practice the other side will run the formula on the larger number anyway and open with it; the calculator here does the same, flagged as above the line, so you know the figure before they say it. That makes a high-income case an evidence case.

My ex moved in with someone. Does maintenance end?

Not automatically. Remarriage or a civil union ends it unless you agreed otherwise. Living together does not. But if the new household changes your ex’s finances, with someone else sharing the rent or paying the bills, that can support a motion to modify.

When should I file to modify?

As soon as the change is real and continuing. A modification generally reaches only the payments that come due after the motion is filed, so every month you wait is a month you don’t get back.

Can I stop paying when I retire?

Retirement doesn’t end maintenance by itself. If you retire after reaching full retirement age for Social Security, the law presumes the retirement is in good faith, which is a strong place to start a modification. Retire early and you carry more of the burden.

My ex remarried. Can I just stop paying?

By statute, maintenance ends on the recipient’s remarriage or civil union unless you agreed otherwise. But if payments run through a wage assignment, or your agreement has unusual language, get the termination confirmed first. A payment you skip that turns out to be owed becomes a judgment the day it was due.

We've been married more than 20 years. Is maintenance for life?

It can be. Past twenty years the court may set a fixed term or make maintenance indefinite, and it can’t set a term shorter than the twenty-year guideline, ten years, without specific findings. The fight becomes whether indefinite is justified at all, and building the record for a fixed term, a step-down, or an end point at retirement.

Most of my income is bonus. How is maintenance set?

On real income, not your best year. When pay swings, the evidence should show the pattern over several years. In a settlement, a base amount plus a share of bonus actually received keeps you from paying on money you never got.

Can a prenup or postnup limit or waive maintenance?

Yes. Colorado enforces maintenance terms in a premarital or marital agreement unless they are unconscionable at the time of enforcement, not just when you signed. That is why I draft them to still look fair ten years later. If you are marrying again, it is the cheapest maintenance defense there is.

Keep reading

Where to go next.

The next page in this chapter, the pages that belong with it, and the blog posts on the same question.

Next in Chapter I · The Money

Ending or Reducing MaintenanceAlready paying: remarriage, cohabitation, retirement, income changesRead it next →

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Previous‹ Spousal MaintenanceThis chapterChapter I · The Money →

If you will be the one writing the check, talk to me before you agree to a number.

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