Divorce law is largely about children and money (and occasionally the family pet). On the money side, of considerable consequence in most divorce cases is spousal maintenance, sometimes referred to as alimony. A spousal maintenance order causes one of the divorcing spouses to pay a monthly amount to the other spouse in furtherance of the goal of fairness and to allow a lower-earning spouse to maintain roughly the same standard of living as before the divorce.

So how does a court decide who will receive, and who will pay, spousal maintenance, and the amount and duration of the payments? And what happens if, after a divorce, there is a change in circumstances which affects the fairness of a previous spousal maintenance decree?

Well, Colorado, along with many other states, has adopted the Uniform Dissolution of Marriage Act, which attempts to deal with these issues. Under the act, if there is a disparity in earnings between the spouses and the lower-earning spouse asks for spousal maintenance, the court must review, and make findings about, several specific factors — notably “the amount of each party’s gross income”; “the amount of marital property apportioned to each party”; “the financial resources of each party, including but not limited to the actual or potential income from separate or marital property”; and “reasonable financial need as established during the marriage.” A court is then given substantial discretion in fashioning a maintenance award, although the act contains “guidelines” that courts will often follow.

As for changed circumstance, the act allows a party to file a motion to modify an earlier spousal maintenance award. For such a motion to succeed, however, the moving party has a heavy burden to show “changed circumstances so substantial and continuing as to make the existing terms unfair.” This, courts have said, is a more demanding standard than the standard applicable to an initial award of spousal maintenance and is intended to “prevent the filing of motions to modify each time there is any change in the earning ability or needs of a party.”

A motion to modify an initial maintenance order was at the heart of a recent decision by the Colorado Court of Appeals. In this case, the original spousal maintenance award was $20,000 a month and was made at a time when the husband was the CEO of an up and coming high-tech company called Hybir.

But then Hybir fell on hard times and the husband’s income was cut back substantially by the company’s board of directors. In his motion to modify, the husband sought a reduction in his maintenance obligation down to $5,133/month. The wife objected, saying with that smaller amount of maintenance, she could no longer adequately care for the couple’s four children and could no longer afford the $5,800 per month mortgage on her home.

A magistrate — a kind of limited powers judge — denied the motion, leading to THE husband’s appeal to the Court of Appeals. The magistrate concluded, among other things, that THE husband had become “voluntarily underemployed” and was thereby willfully shirking his spousal maintenance obligation. This, the magistrate found, included spending too much time with a girlfriend in Louisiana. The magistrate further suggested that THE husband, as the CEO of Hybir, could have fired other employees and taken over their duties, thereby increasing his working time and, presumably, his income.

To that idea, the Court of Appeals said: “We are aware of no Colorado precedent permitting a court to direct a party to fire employees … and take their jobs and salaries in order to satisfy a maintenance obligation.”

Bottom line, the Court of Appeals decided many of the magistrate’s rulings were unsupported by the evidence (aka off the wall) or irrelevant. The court sent the case back to the trial court for further proceedings intended to tease out relevant facts and correctly apply the law.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. Email him at [email protected].