In Colorado, any maintenance award per the original divorce decree may be modifiable as long as the original divorce decree does not set forth said maintenance award as a contractual, non-modifiable award of maintenance. The law regarding modification of maintenance awards is set forth below.
Pursuant to C.R.S. 14-10-122(1)(a), “…the provisions of any decree respecting maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair.” In making this determination, the court is required to examine all circumstances pertinent to awarding maintenance.
Accordingly, the Court may modify a determinable award of maintenance filed after the obligor’s maintenance obligation expires.
Nonetheless, a motion to modify is not considered under the same standard as an original award, and one who seeks to modify maintenance has a heavy burden. In re Marriage of Anderson, 638 P.2d 826 (Colo.App.1981). The issue is not whether, based on the current financial circumstances of the parties, the court would have ordered the same amount of support. Instead, the question is different: Have the terms of the original award become unfair, i.e., unconscionable.
Further, there must be evidence of a change of circumstances from the time of the previous decree awarding maintenance or child support to justify a change of the decree’s provisions.
In reviewing a maintenance award and determining whether a modification is justified, the trial court is required to consider the parties' economic circumstances and the reasonable expectations established during the marriage. The term “reasonable needs” is not to be viewed narrowly. It does not mean the minimum requirements to sustain life, but is “dependent upon the particular facts and circumstances of the parties' marriage.”
Mere increases or decreases in earnings do NOT require the conclusion that the amount of maintenance has become unconscionable. In re Marriage of Bowles, 916 P.2d 615, 618 (Colo.App.1995). See also, In re Marriage of LeBlanc, App.1990, 800 P.2d 1384 [fact that a spouse who receives maintenance enjoys increased income in comparison to amount of income earned by that spouse at time the decree was entered does not necessarily require the conclusion that the initial award of maintenance has been rendered unconscionable].
Also, please be aware of a Colorado Court of Appeals case that just came out on May 10, 2018, In Re: Marriage of Rowe, 16CA1878 Marriage of Lowe 05-10-2018, that sets forth the proposition the voluntary career changes and voluntary choices do not establish a substantial and continuing change in circumstances as to make the original terms unfair.
Please contact the Domestic Team at Feldmann Nagel Margulis for all of your family law needs.