Recently someone asked me if she could get maintenance from her former spouse whose life circumstances had changed substantially. At the time of their divorce, they had agreed that neither of them would receive maintenance payments; however, his life circumstances changed significantly since their papers were signed.
Could she go back to Court and request maintenance from him?
A Blurry Area of Colorado Law
The answer to this question is confusing, at least in Colorado. I have spoken to many people who feel that if you don’t receive maintenance at the time of the divorce, you cannot subsequently ask for it.
However, I think, when a more careful analysis of the law is conducted, we find that it does not actually state that this is the case. Once again, the law is not definitive one way or the other, but my opinion is that you can ask for maintenance subsequently, but there must have been a continuing change of circumstances that would render the original court order unfair.
Every judge will handle this kind of circumstance differently, so it’s difficult to predict exactly how the situation would play out. In my opinion, a former spouse should not benefit from his or her ex’s subsequent success. Say a husband and wife get divorced after a contentious marriage. If she goes on to get a huge promotion at work because she’s more focused and clearer now that she doesn’t constantly fight with a spouse, he should not benefit from her newfound success.
I believe that for a judge to have a real interest in increasing maintenance after the divorce, there must be a situation at play that could not possibly have been anticipated at the time. That, or it is found after the divorce papers are signed that one party had hidden assets.
When Circumstances Change Significantly
Here’s an example of a situation that would likely warrant an adjustment to maintenance payments: say a husband and wife get divorced, and he gives her a painting that they both believe is worth a couple thousand dollars. After the divorce, she finds out that it’s actually an original Picasso, worth hundreds of thousands of dollars. That is the type of change of circumstances that a Court might want to review.
However, if the husband went out and bought a new painting after the divorce for $20 only to later discover that it is worth millions, the former wife should not get to benefit from his subsequent gains.
New Marriage and Maintenance
In Colorado, the law specifically indicates that a new spouse’s income is irrelevant to maintenance paid to a former spouse. In other words, a former spouse cannot go back to the Court and say, “Judge, my ex-husband married a wealthy woman, and because of his new financial situation, I want more money.”
In a situation like this, the Court will not consider the new wife’s wealth in calculating the former wife’s maintenance. However, it may look at the reduction in the husband’s living expenses. Say the husband owns a house with a mortgage of $1500 per month. When his new wife moves in, she pays half. Because his monthly expenses are now reduced, there may be an argument that maintenance should be adjusted.
Finally, it should be noted that the Court is less likely to look at an adjustment in maintenance the longer it has been since the divorce was finalized.
If you are dealing with issues of maintenance, whether you’re in the middle of a divorce or you want to revise a past divorce agreement, let’s talk. Call our office at 303-449-1873 for a free consultation today.