Can a Spouse Be Forced to Work Additional Jobs to Pay Alimony?
Full Question:
Answer:
In Colorado, "income" means the actual gross income of a parent, if employed to full capacity, or potential income, if unemployed or underemployed. "Gross income" does not include 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.
Please see the following CO statutes to determine applicability:
From 14-10-115: "Gross income" includes income from any source, except as otherwise
provided in subparagraph (II) of this paragraph (a), and includes, but is
not limited to:
(A) Income from salaries;
(B) Wages, including tips declared by the individual for purposes of
reporting to the federal internal revenue service or tips imputed to bring
the employee's gross earnings to the minimum wage for the number of hours
worked, whichever is greater;
(C) Commissions;
(D) Payments received as an independent contractor for labor or services;
(E) Bonuses;
(F) Dividends;
(G) Severance pay;
[EDITORS' NOTE: THE TEXT OF (H) IS EFFECTIVE UNTIL JANUARY 1, 2010,
SEE BELOW SECTION FOR TEXT EFFECTIVE JANUARY 1, 2010.]
(H) Pensions and retirement benefits, including but not limited to those
paid pursuant to article 64 of title 22, C.R.S., articles 51, 54, 54.5, and
54.6 of title 24, C.R.S., and article 30 of title 31, C.R.S.;
[EDITORS' NOTE: THE TEXT OF (H) IS EFFECTIVE JANUARY 1, 2010, SEE ABOVE
SECTION FOR TEXT EFFECTIVE UNTIL JANUARY 1, 2010.]
(H) Pensions and retirement benefits, including but not limited to those
paid pursuant to articles 51, 54, 54.5, and 54.6 of title 24, C.R.S., and
article 30 of title 31, C.R.S.;
(I) Royalties;
(J) Rents;
(K) Interest;
(L) Trust income;
(M) Annuities;
(N) Capital gains;
(O) Any moneys drawn by a self-employed individual for personal use;
(P) Social security benefits, including social security benefits actually
received by a parent as a result of the disability of that parent or as the
result of the death of the minor child's stepparent but not including
social security benefits received by a minor child or on behalf of a minor
child as a result of the death or disability of a stepparent of the child;
(Q) Workers' compensation benefits;
(R) Unemployment insurance benefits;
(S) Disability insurance benefits;
(T) Funds held in or payable from any health, accident, disability, or
casualty insurance to the extent that such insurance replaces wages or
provides income in lieu of wages;
(U) Monetary gifts;
(V) Monetary prizes, excluding lottery winnings not required by the rules
of the Colorado lottery commission to be paid only at the lottery office;
(W) Taxable distributions from general partnerships, limited
partnerships, closely held corporations, or limited liability companies;
(X) Expense reimbursements or in-kind payments received by a parent in
the course of employment, self-employment, or operation of a business if
they are significant and reduce personal living expenses;
(Y) Alimony or maintenance received; and
(Z) Overtime pay, only if the overtime is required by the employer as a
condition of employment.
(II) "Gross income" does not include:
(A) Child support payments received;
(B) Benefits received from means-tested public assistance programs,
including but not limited to assistance provided under the Colorado works
program, as described in part 7 of article 2 of title 26, C.R.S.,
supplemental security income, food stamps, and general assistance;
(C) 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; and
(D) Social security benefits received by the minor children, or on behalf
of the minor children, as a result of the death or disability of a
stepparent are not to be included as income for the minor children for the
determination of child support.
(III) (A) For income from self-employment, rent, royalties,
proprietorship of a business, or joint ownership of a partnership or
closely held corporation, "gross income" equals gross receipts minus
ordinary and necessary expenses, as defined in sub-subparagraph (B) of
this subparagraph (III), required to produce such income.
(B) "Ordinary and necessary expenses" does not include amounts allowable
by the internal revenue service for the accelerated component of
depreciation expenses or investment tax credits or any other business
expenses determined by the court to be inappropriate for determining gross
income for purposes of calculating child support.
(b) (I) If a parent is voluntarily unemployed or underemployed, child
support shall be calculated based on a determination of potential income;
except that a determination of potential income shall not be made for a
parent who is physically or mentally incapacitated or is caring for a child
under the age of thirty months for whom the parents owe a joint legal
responsibility or for an incarcerated parent sentenced to one year or more.
(II) If a noncustodial parent who owes past-due child support is
unemployed and not incapacitated and has an obligation of support to a
child receiving assistance pursuant to part 7 of article 2 of title 26,
C.R.S., the court or delegate child support enforcement unit may order the
parent to pay such support in accordance with a plan approved by the court
or to participate in work activities. Work activities may include one or
more of the following:
(A) Private or public sector employment;
(B) Job search activities;
(C) Community service;
(D) Vocational training; or
(E) Any other employment-related activities available to that particular
individual.
(III) For the purposes of this section, a parent shall not be deemed
"underemployed" if:
(A) The employment is temporary and is reasonably intended to result in
higher income within the foreseeable future; or
(B) The employment is a good faith career choice that is not intended to
deprive a child of support and does not unreasonably reduce the support
available to a child; or
(C) The parent is enrolled in an educational program that is reasonably
intended to result in a degree or certification within a reasonable period
of time and that will result in a higher income, so long as the educational
program is a good faith career choice that is not intended to deprive the
child of support and that does not unreasonably reduce the support
available to a child.
(c) Income statements of the parents shall be verified with documentation
of both current and past earnings. Suitable documentation of current
earnings includes pay stubs, employer statements, or receipts and expenses
if self-employed. Documentation of current earnings shall be supplemented
with copies of the most recent tax return to provide verification of
earnings over a longer period. A copy of wage statements or other wage
information obtained from the computer data base maintained by the
department of labor and employment shall be admissible into evidence for
purposes of determining income under this subsection (5).
...[omitted]
14-10-114. Maintenance.
(1) Legislative declaration. The general assembly hereby finds that the
economic lives of spouses are frequently closely intertwined in marriage
and that it is often impossible to later segregate the respective
decisions and contributions of the spouses. The general assembly further
finds that when a dissolution of marriage or legal separation action has
been filed and temporary orders are to be determined pursuant to section
14-10-108, it is generally appropriate to utilize the period of temporary
orders as a period of adjustment during which the marital arrangements of
the parties may be recognized through a temporary blending of the
parties' incomes. Accordingly, the general assembly declares that for
purposes of temporary orders, it is appropriate in most cases to apply a
presumptive formula to the determination of temporary maintenance.
(2)(a) In every proceeding for dissolution of marriage or legal
separation when temporary maintenance is requested by a party and when the
combined annual gross income of the two parties is seventy-five thousand
dollars or less, there shall be a rebuttable presumption in favor of a
specific award of temporary maintenance from the higher income party to the
lower income party based upon the formula set forth in paragraph (b) of
this subsection (2). In those cases in which the combined annual gross
income of the parties exceeds seventy-five thousand dollars, the court may
award a monthly amount of temporary maintenance pursuant to the provisions
of subsections (3) and (4) of this section.
(b) (I) (A) The monthly amount of temporary maintenance in cases in which
the parties' combined annual gross income is seventy-five thousand dollars
or less shall be 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. If the remainder of such calculation
is the number zero or a negative number, the presumption shall be that
temporary maintenance shall not be awarded. If the remainder of such
calculation is more than zero, that amount shall be the amount of the
monthly temporary maintenance.
(B) In any action to establish or modify temporary maintenance pursuant
to this subsection (2), the formula set forth in sub-subparagraph (A) of
this subparagraph (I) shall be used as a rebuttable presumption for the
establishment or modification of the amount of temporary maintenance.
Courts shall deviate from the formula where its application would be
inequitable or unjust. Any such deviation shall be accompanied by written
or oral findings by the court specifying the reasons for the deviation
and the presumed amount under the formula without deviation.
(C) The parties may agree in writing to waive temporary maintenance under
this subsection (2) where one party is otherwise entitled to temporary
maintenance under the formula or the parties may agree in writing to
deviate from the presumptive amount of temporary maintenance. Any such
agreement to waive temporary maintenance or to deviate from the presumptive
amount shall include the reason or consideration for the waiver or
deviation. The court shall have jurisdiction to review such agreement and
to decline to approve such agreement if the court determines that the
agreement is unconscionable.
(II) At the time of the initial establishment of temporary maintenance
pursuant to this subsection (2), or in any proceeding to modify a temporary
maintenance order pursuant to this subsection (2), if a party is under an
obligation to pay maintenance or alimony pursuant to a prior valid court
order, an adjustment shall be made revising such party's income by the
amount of such maintenance or alimony actually paid prior to calculating
the amount of temporary maintenance.
(III) At the time of the initial establishment of temporary maintenance
pursuant to this subsection (2), or in any proceeding to modify a
temporary maintenance order pursuant to this subsection (2), if a party
is legally responsible for the support of other children who are not the
children of the parties and for whom the parties do not share joint legal
responsibility, an adjustment shall be made revising such party's income
by the amount of such child support paid prior to calculating the amount
of temporary maintenance.
(IV) (A) For purposes of this section, "income" shall have the same
meaning as that term is described in section 14-10-115(3).
(B) For purposes of calculating the formula set forth in this paragraph
(b), "monthly adjusted gross income" means gross income less preexisting
maintenance or alimony obligations actually paid by a party as described
in subparagraph (II) of this paragraph (b) and less the amount of child
support paid by a party, as described in subparagraph (III) of this
paragraph (b).
(c) The period of time covered by any temporary maintenance ordered
pursuant to this subsection (2), upon the request of a party, shall begin
at the time of the parties' physical separation or filing of the petition
or service upon the respondent, whichever occurs last, taking into
consideration payments made by either party during such period.
(d) Because spousal maintenance awards entered at temporary orders
pursuant to this subsection (2) are made under different standards and for
different reasons than spousal maintenance awards entered at permanent
orders, the temporary maintenance formula set forth in this subsection (2)
shall not be used for the determination of spousal maintenance orders to be
entered at permanent orders and any temporary maintenance order entered
pursuant to this subsection (2) shall not prejudice the rights of either
party at permanent orders.
(e) After determining the presumptive amount of temporary maintenance
pursuant to this subsection (2) and the amount of temporary child support
pursuant to section 14-10-115, the court shall consider the respective
financial resources of each party and determine the temporary payment of
marital debt and the temporary allocation of marital property.
(3) In a proceeding for dissolution of marriage or legal separation or a
proceeding for maintenance following dissolution of marriage by a court,
the court may grant a temporary maintenance order when the parties'
combined annual gross income is more than seventy-five thousand dollars or
a maintenance order at the time of permanent orders for either spouse only
if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to
him or her, to provide for his or her reasonable needs; and
(b) Is unable to support himself or herself through appropriate
employment or is the custodian of a child whose condition or
circumstances make it appropriate that the custodian not be required to
seek employment outside the home.
(4) A temporary maintenance order in those circumstances in which the
parties' combined annual gross income is more than seventy-five thousand
dollars or a maintenance order entered at the time of permanent orders
shall be in such amounts and for such periods of time as the court deems
just, without regard to marital misconduct, and after considering all
relevant factors including:
(a) The financial resources of the party seeking maintenance, including
marital property apportioned to such party, and the party's ability to meet
his or her needs independently, including the extent to which a provision
for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to
enable the party seeking maintenance to find appropriate employment and
that party's future earning capacity;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age and the physical and emotional condition of the spouse
seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his
or her needs while meeting those of the spouse seeking maintenance.
