Appeal on Maintenance Statute

The Hulse Law Firm, PC recently represented a party in an appeal that was published.  Being “published” means the trials courts are to review and apply a published case when similar issues arise in their courtrooms.   One of the main issues on appeal asked the court to analyze a portion of the fairly new maintenance statute that was enacted on January 1, 2014.  (see link for full opinion

The maintenance statute is fairly lengthy, but this appeal focused on one small portion of the statute which states:

The amount of maintenance under the guidelines is equal to forty percent of the higher income party’s monthly adjusted gross income less fifty percent of the lower income party’s monthly adjusted gross income; except that when added to the gross income of the recipient, shall not result in the recipient receiving in excess of forty percent of the parties’ combined monthly adjusted gross income. (emphasis added)

What does this mean in layman’s terms?

Example:  Husband earns $3000 a month

Wife earns $10,000 a month

According to the first part of this paragraph, maintenance is calculated as $4000 – $1500 = $2500 maintenance to Husband

However, the second sentence limits the amount of maintenance:  Husband cannot receive more than $5200 a month in his income and maintenance (which is 40% * $13,000 (the total amount of maintenance)  Given this, he can only receive $2200 in maintenance, rather than $2500 as calculated according to the first part of the paragraph.

Accordingly, although the first sentence provides a formula for determining maintenance, the second sentence “caps” maintenance in certain cases.

In the appeal, Husband argued that because the statute used mandatory language like “shall not…,” that the “cap” should be a mandatory limit to what courts can order for maintenance in cases.

The appellate court disagreed with this argument, but stated it was a case of first impression, and thus published it to provide guidance for trial courts in Colorado.  The Appellate Court reviewed this language in statute as a whole and determined that the guidelines are advisory, including the language of the “cap.”  This means despite this formula, and despite the language “shall not,” a trial court has absolute discretion in determining maintenance in any given case, including if it wants to exceed the formula.

Bottom line: While this may be confusing, basically it means that the Court needs to review the guideline formula (including the “cap”) but can still, within its discretion after reviewing the other factors in the statute*, award any amount of maintenance it deems appropriate.

*For more information on the other factors in the maintenance statute, review §14-10-114, C.R.S. and