The coronavirus is pushing the country into uncharted waters, jeopardizing nearly half of American jobs. If your work has been impacted by the coronavirus, you may wish to modify the amount of maintenance you are paying your ex-spouse. The first step in tackling this question is to determine whether you can modify maintenance in the first place.
If you and your ex-spouse were able to agree to maintenance as a part of a larger separation agreement, you may have agreed that maintenance is modifiable, or non-modifiable. If the separation agreement states that maintenance is modifiable, then keep reading.
Adversely, if the separation agreement expressly states that maintenance is non-modifiable, then you are unable to request a modification, period. You must pay your maintenance pursuant to the terms of the separation agreement, regardless of changing circumstances””even coronavirus.
If maintenance was awarded by the judge at your permanent orders hearing, then it is always subject to modification. This is mandated by Colorado Statutes, which states: “Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.” §14-10-114(5)(a),
C.R.S.
In order to modify maintenance, you must meet the legal requirement, which is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” §14-10-122(1)(a), C.R.S.
When dealing with child support, there is a higher bar to meet, as the change must result in at least a 10% difference in owed support. Maintenance, on the other hand, depends on whether you can prove to the court a “substantial and continuing” change in circumstances.
This is not an either-or test; you must prove that the change in circumstances (your lost job, for example) is both substantial and continuing.
What courts look for is a change in circumstances so substantial that it renders the original maintenance award unfair. A modest change to your income is not likely to be seen as substantial, no matter how permanent it may be.
Loss of employment, while immediate and substantial, is usually temporary. If you will likely be re-hired when the pandemic subsides, it is likely premature to file for a modification of maintenance or child support because you will be unable to meet the legal requirement that the change in employment circumstances is continuous, not just substantial.