Divorce at Altitude: A Podcast on Colorado Family Law

Retirement & Spousal Maintenance in a Colorado Divorce | Episode 190

• Caitlin Geary

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What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Ryan Kalamaya:

Welcome to Divorce At Altittude, a podcast on Colorado family law. I'm Ryan Kalamaya. Each week, along with my business partner and co-host, Amy Goscha, or an expert, we discuss a particular topic related to Divorce or co-parenting in Colorado. In addition, we have created a short series of lessons that will take you through the legal process of Divorce and answer your questions from simple to complex. Divorce isn't easy. The end of a marriage, especially when children are involved, brings a great deal of loss and change. We hope these practical tips and insights will help you on your journey to a new. And better life. This is a how to episode on retirement and spousal maintenance in a call or a divorce. Now, as I said, this is a how to episode, which is fairly short. If you want more information on this particular topic, Amy and I have done several podcast episodes in an extensively discussed gray divorces, as well as retirement. And spousal maintenance, but the high level issues involved in this particular topic are that we have the age of the parties and it really depends on, are we setting spousal support around when Eric and Melanie are hypothetical divorce clients are going to retire or is Eric, for example, 60 years old and they had discussed, during the marriage that he would retire at. 62 maybe in two years or are they after 65 and Eric is still working? And indeed, those issues frequently come up in what we call gray divorces. And it comes down to the statutory provision under 1410. 122, which is, I will note, the statute on modification of maintenance. And indeed we'll have. Separate episode on how modifications work, but really that provision states that when Eric reaches what is called full retirement age, and that's defined by the Social Security Administration, and that in turn definition is a moving target because they've. They've defined the age of retirement between 64, 65 and so on. And it depends on when you were born, but the law in Colorado, it defines the full retirement age based on the social security administration. And if Eric retires after reaching full retirement age, then there's a rebuttable presumption that he has done so in good faith. Now, he could, Eric could retire and he could do it to just spite Melanin so that he doesn't have to pay. He could, a version of divorce flu, say, I was going to retire early or I was, we had talked about me retiring and he could just keep on working. And in that scenario, the court's presented with. What do we do with the amount of spousal support that Eric should be paying Melanie and oftentimes Eric and Melanie are going to go through their estate and retirement planning and how they arrange their financial lives based on the assumption that they're going to be married. And so when you have a divorce, those change, those plans may change. But really what we're, talking about is. Should Eric continue paying Melanie well into his seventies? And how do we balance the, what the court's called the payors dilemma. And that is the, does Eric, does he need to retire in order to reduce his income or the amount of spousal support that he owes Melanie? Or does he get a decision on the amount that would. He would pay before actually retiring because he could retire or semi retire. That is a fairly common scenario. And the court in Colorado has addressed that in a case called intermarriage of swing. And it's helpful to understand the facts of swing to really dive into some of the issues that we're addressing here. And that in swing, the husband was a long haul truck driver. He made, a particular amount of money, and then he decided that he was getting too old to be doing overnight or long haul truck driving. So he went to work for UPS, which was more local, more predictable. He wasn't working as much and therefore his income also went down. So the issue was should. The husband in that scenario, should his spousal support go down and it really gets into is the husband's decision or Eric's decision to retire or semi retire is that made in good faith. So the legislature, as I said before has set out that when a person makes, reaches full retirement age, then there's a rebuttable. Presumption, but we can also get into scenarios. It's fairly common where parties, especially where they've worked, very hard and have accumulated substantial assets. They may have had a plan for Eric to retire early. What happens in that scenario where there's now a divorce? Does Eric get the benefit of retiring at the age of 55 or should he? have to change his plans and continue working until he is 65. Indeed, some of those issues are going to be highly disputed and it really is going to depend on the judge. One judge I know of believes that people are entitled to retire at 65 and if they retire then they don't owe any, they don't owe any spousal support. Other judges will disagree. But if you get into the income analysis of 1410114, which is the statute on spousal support, you are going to take into consideration pension as well as retirement benefits. So if Eric is drawing from his IRA or his 401k, we're going to take that into consideration when determining his income. So some of these issues can be very complex. And I would. Suggest that if retirement and spousal support is really a hot button topic that you consult with an attorney because it's more than just a simple formulaic approach because there's going to be these competing issues and factors, namely Eric and Melanie's age, their health, their economic circumstances, who earned what during the marriage and how long they were married. But for now, that's hopefully a helpful overview on retirement and spousal support in a Colorado divorce. Thanks for listening or watching this short lesson on the Divorce Ude podcast. If you found this helpful, please leave a review or share with a friend. It does help for others that are going through or thinking about a Divorce in Colorado. If you want to find out more information, Please visit Kalamaya Law or Divorce at Altittude dot com and that's K A L A M A Y A law. Remember, this is educational information, it's not intended to be legal advice. Please consult with an attorney about the particulars of your case. We're happy to answer questions. Feel free to give us a call at(970) 315-2365.