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I am getting a divorce and asking for alimony. My husband's…

I am getting a...

I am getting a divorce and asking for alimony. My husband's attorney told me that since he is retired any other money he makes is considered "voluntary" and does not count, only his pension. Is this true?

Lawyer's Assistant: What steps have you taken? Have you filed any papers in family court?

Yes we are geting ready to go into mediation.

Lawyer's Assistant: Family law varies by state. What state are you in?

Colorado

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Answered in 5 minutes by:
7/10/2018
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,708
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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The statute clearly states that gross income will be considered; under the laws of statutory construction the legislature is deemed to have meant all income, unless they specifically excluded certain income such as post retirement income. Please see relevant portion of statute here:

3) (a) (I) Determination of maintenance. When a party has requested maintenance in a dissolution of marriage, legal separation, or declaration of invalidity proceeding, prior to granting or denying an award of maintenance, the court shall make initial written or oral findings concerning:

(A) The amount of each party's gross income;

(B) The marital property apportioned to each party;

(C) The financial resources of each party, including but not limited to the actual or potential income from separate or marital property; and

(D) Reasonable financial need as established during the marriage.

(II) After making the initial findings described in subparagraph (I) of this paragraph (a), the court shall determine the amount and term of the maintenance award, if any, that is fair and equitable to both parties after considering:

(A) The guideline amount and term of maintenance set forth in paragraph (b) of this subsection (3), if applicable, based upon the duration of the marriage and the combined gross incomes of the parties;

(B) The factors relating to the amount and term of maintenance set forth in paragraph (c) of this subsection (3); and

(C) Whether the party seeking maintenance has met the requirement for a maintenance award pursuant to paragraph (d) of this subsection (3).

And you can print this out directly here

I hope this helps!

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Customer reply replied 11 days ago
That doesn't answer my question. It says "unless they specifically excluded certain income such as post retirement income" where does the state of Colorado stand on this?
Customer reply replied 11 days ago
no i don't need to call thank you
Customer reply replied 11 days ago
are you working on my follow up question?
Robert L
Category: Legal
Satisfied Customers: 241
Experience: Associate Attorney at Henrickson & Serrebutra, LLC
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Good evening, my name is ***** ***** I am an attorney (legal expert) with JustAnswer and I will do my best to assist you with your legal question(s) today.

What follows is my answer to your question. If you have follow up questions please feel free to ask them by way of responses to this thread.

Question - My husband's attorney told me that since he is retired any other money he makes is considered "voluntary" and does not count, only his pension. Is this true?

Answer - The short answer is NO, it is not true. C.R.S. 14-10-114(c)(VI) permits the consideration of secondary income, which is what you are describing, here is what that part of the statute says - "Whether one party has historically earned higher or lower income than the income reflected at the time of permanent orders and the duration and consistency of income from overtime or secondary employment; only exempts second jobs."

What it does not include is "Income from additional jobs that result in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment."

A more detailed discussion of Colorado Alimony will follow this answer.

I hope that my explanation above has fully answered/resolved your question. If you feel I have answered all your questions, I would very much appreciate a 5 star rating by clicking on the rating scale on your screen as that is the only way I receive credit for my work.

**Please remember that this answer is general legal information only and does not constitute legal advice nor result in the formation of an attorney-client relationship.**

**There may be a delay in my response(s) as I type out an answer or reply as I am an actual practicing attorney, not an employee of JustAnswer. But know that I will ALWAYS return to answer your question(s).**

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In the state of Colorado, a family law judge will determine if maintenance is appropriate and, if so, how much and for how long. As stated in C.R.S. 14-10-114, determination of maintenance requires the request of one party following separation, divorce, or annulment and is based on the amount of each party’s gross income, marital property, and financial resources, as well as reasonable financial need as established during the marriage (3)(a)(I). After the court has determined that maintenance is appropriate, it will then identify the amount and length of alimony.

This is based on a formula:

The amount of maintenance is equal to 40% of the higher income earner’s monthly adjusted gross income, minus 50% of the lower income earner’s monthly adjusted gross income. When the alimony amount is added to the gross income of the recipient, he or she cannot receive more than 40% of the couple’s combined monthly adjusted gross income.

The length of alimony is based on the number of months of marriage and ranges from 11 months for a marriage lasting three years to 10 years for a marriage lasting 20 years (see chart in C.R.S. 14-10-114). For marriages that lasted longer than 20 years, the court has discretion on how much and for how long alimony will be awarded. In some cases of long-term marriages, alimony can be granted for life, only to be rescinded upon death or remarriage.

So if you’re looking at your own situation, the timeline may seem clear according to the guidelines. Generally speaking, you need to have been married at least three years to be eligible for alimony. And if the higher earner grosses $40,000 monthly while the lower earner grosses $4,000 monthly, that person would be eligible for up to $14,000 in monthly support.

But that formula does not take into account that every court is run differently, and what you think is going to happen might not actually be what does happen.

How Colorado Courts Determine Spousal Maintenance

Colorado courts use legislative guidelines to determine when maintenance is awarded, how much should be awarded, and for how long. However, they are just guidelines, and the court can consider any factor related to the marriage in determining maintenance awards, including:

· The financial resources of both parties,

· The marriage lifestyle,

· The division of marital property,

· Each spouse’s employment and employability,

· Each spouse’s age and health, and

· Any significant economic and non-economic contributions each spouse made to the marriage.

Significant economic and non-economic contributions can include one spouse paying the other’s debts or completing job training while the other spouse worked full time.

The guidelines only apply to marriages where the couple’s combined annual gross earnings are $360,000 or less. In determining how long maintenance should last, they only apply to marriages that lasted between three and 20 years. For marriages longer than 20 years, the court has much more discretion, including awarding indefinite maintenance requiring an agreement or court order to terminate.

As a starting point for determining how much maintenance to award, the courts use a mathematical formula based on the couple’s yearly earnings, and the total award is capped at 40% of the couple’s combined annual gross income.

The court can allow temporary maintenance to a party earning less than the other party for use during the divorce proceedings, but the temporary maintenance may have no bearing on a more permanent award at the conclusion.

Even with the state regulations and guidelines, which you can review at your leisure, alimony is not always a cut-and-dried issue. That’s one of the reasons it’s so important to have an experienced family and divorce attorney on your side as you maneuver your way through your separation and divorce. One court may follow the guidelines to the letter while another may choose to toss them out altogether. In the end, your awarding of alimony is reliant on the judgment of the family court in which you find your case being tried.

Here are two examples:

In the case of Marriage of Yates, the wife was requesting alimony of $1,300 monthly from her unemployed husband (148 P.3d at 313; No. 04CA1310; http://www.cobar.org/opinions/opinion.cfm?opinionid=5674&courtid=1). Instead of looking only at the fact that the husband wasn’t currently earning an income, the court looked instead at his earning potential. The court found that while the wife earned $4,750 each month, the husband had the potential to earn $12,845. Add that to the fact that the couple had been married for 20 years and that the wife had contributed to the husband’s career during their marriage, the court found that $500 a month in alimony was appropriate.

In another case, the marriage of Weibel (No. 97CA0459; http://www.cobar.org/opinions/opinion.cfm?opinionid=2660&courtid=1), the husband felt that the alimony order was unfair since the wife was putting her earned income into retirement and savings accounts instead of using that money to live. The court determined that the amount of money placed in savings and retirement accounts was not to be considered in reducing the maintenance amount because that money was classified as living expenses given the circumstances.

In each of these cases, the standard plug-and-play formula didn’t work to the benefit of both parties. The court made its own determinations based on the knowledge of the parties’ attorneys and their ability to appropriately try the cases. Appropriate representation is what made the difference in the end.

Robert L
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Satisfied Customers: 241
Experience: Associate Attorney at Henrickson & Serrebutra, LLC
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

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