Most people assume the maintenance question in a Colorado divorce is "how much." For a large share of cases, the real question is "whether." Before a judge can order a single dollar, C.R.S. § 14-10-114(3)(d) requires a finding that the spouse asking for support lacks sufficient property to meet reasonable needs and cannot support himself or herself through appropriate employment. Fail that test and the amount is zero, no matter how long the marriage or how large the income gap.
Nearly everything that "disqualifies" a spouse from maintenance is a way of failing that threshold, or of having agreed in advance not to ask. The one thing many clients expect to matter, an affair, does not.
The Threshold Finding That Ends Most Claims
Colorado's maintenance statute has a strange order of operations. The court first finds each party's gross income, the marital property going to each, their financial resources, and the reasonable need established during the marriage. It then considers the advisory guideline and thirteen listed factors. Only at the end does it decide the threshold: does this spouse actually need support? The Court of Appeals in In re Marriage of Wright (2020) called that finding "essential" even though the legislature put it last.
Two phrases carry the weight. "Reasonable needs" is not subsistence; under In re Marriage of Olar (Colo. 1987) and In re Marriage of Thornhill (Colo. 2010) it is measured against the lifestyle the couple actually lived. "Appropriate employment" means work suited to the person and consistent with the expectations set during the marriage, not any job at all. Those definitions help the spouse who left a career to raise children; they do not help a spouse with a current professional income who simply earns less than the other.
A denial has consequences. Under Rodman v. Rodman (Colo. App. 1972), a judgment denying maintenance forecloses a later award. When a court sees a genuine risk that need will develop, C.R.S. § 14-10-114(3)(c)(XI) lets it award a nominal amount, historically one dollar a year, to keep the claim alive.
Property, Income, and Earning Capacity
The threshold counts "marital property apportioned" to the requesting spouse, and C.R.S. § 14-10-114(3)(f) expressly lets the court award extra marital property to reduce or eliminate maintenance. In a case with a large liquid estate, that is the payor's first argument: give her the brokerage account, and she does not need my paycheck.
The argument works when the property produces income. A spouse who receives $1,500,000 in investments can reasonably be expected to earn something from it, and In re Marriage of Krise (Colo. App. 1983) lets the court count that potential. It works less well when the property is a house, a retirement account that cannot be touched without penalty, or an equalization payment. Colorado courts have said repeatedly, in Banning, Nordahl, and Bartolo, that a spouse is not required to consume his or her share of the estate to qualify, and that a balancing payment is not a substitute for support. In In re Marriage of Huff (Colo. 1992), a wife in her early fifties who had not worked since the first year of a 33-year marriage received $250,000 in cash and still got $5,000 a month.
Where both spouses work at comparable levels, the guideline formula often produces nothing. Take a couple earning $150,000 and $110,000. Forty percent of the combined $260,000 is $104,000; subtract the lower earner's $110,000 and the result is negative, which the statute treats as zero. The court still walks through the factors, but a spouse earning $110,000 will rarely satisfy the "unable to support" prong.
Earning capacity, not just current earnings, is what counts. If a spouse is voluntarily unemployed or underemployed, C.R.S. § 14-10-114(8)(c)(IV) requires the court to calculate maintenance on potential income. The exceptions are narrow: physical or mental incapacity, caring for a child of the marriage under 24 months (HB25-1159 lowered this from 30 months in 2025 to match the child support statute), or incarceration of 180 days or more. A good-faith career change, a temporary job expected to lead to higher pay, or a degree program that will raise income does not count as underemployment, and in In re Marriage of Collins (2023) the Court of Appeals refused to impute full-time nursing income to a mother who cut her hours to care for a child with severe special needs.
Marriages Under Three Years
The advisory guideline term begins at 36 months. Below that, there is no table to consult, and C.R.S. § 14-10-114(3)(h) permits maintenance in a short marriage only "when, given the circumstances of the parties, the distribution of marital property is insufficient to achieve an equitable result." In practice, a two-year marriage between two working adults produces no maintenance at all, or a short bridge measured in months. The Colorado Supreme Court once affirmed a $500 lump sum in lieu of alimony after a six-month marriage, and $50 a month for a year after another brief one.
Temporary maintenance during the case itself is a different question, and a short marriage does not bar it. The end of the case is where the length of the marriage bites.
Valid Waivers, and When They Fail
A spouse can waive maintenance in a premarital or marital agreement, or in the separation agreement at the end of the case. Prenups and postnups signed on or after July 1, 2014 are governed by the Colorado Marital Agreements Act. Under C.R.S. § 14-2-309, the waiver is unenforceable if the party proves it was involuntary, that he or she lacked access to independent counsel, that the agreement omitted the plain-language notice of waiver of rights (when unrepresented), or that there was no adequate financial disclosure.
Even a properly executed waiver has one more hurdle. Subsection (5) of that statute makes a maintenance waiver unenforceable "insofar as" it is unconscionable at the time of enforcement, and the judge decides that question. A waiver signed by two healthy thirty-year-olds may look very different when one of them is disabled and without assets twenty-five years later. Waivers of property rights do not get this second look; maintenance and attorney fee waivers do.
Waivers in a separation agreement are reviewed under C.R.S. § 14-10-112 for unconscionability, and if either party is unrepresented, the court cannot approve one unless that person acknowledges awareness of the guidelines. Once approved, the waiver holds: under In re Marriage of Vincent (Colo. App. 1985), a spouse who received consideration for waiving maintenance cannot undo it absent fraud, collusion, or duress. A spouse who pleads maintenance but tells the court at the permanent orders hearing that it is not an issue has waived it too.
What Does Not Disqualify Anyone
Adultery is the myth that will not die. C.R.S. § 14-10-114(2) requires maintenance to be decided "without regard to marital misconduct." An affair does not reduce a wife's award or increase a husband's obligation. Money spent on an affair may be charged back in the property division as dissipation, but that is a property remedy, not a maintenance one.
Conduct within the marriage is now relevant in one specific way. Since August 6, 2025, C.R.S. § 14-10-114(3)(c)(XII.5) directs courts to consider whether a spouse engaged in domestic violence, coercive control, economic abuse, litigation abuse, emotional abuse, physical abuse, or unlawful sexual behavior against the other; that factor deserves its own discussion and gets one elsewhere on this blog. Two other non-disqualifiers: a recipient's later cohabitation does not end maintenance by itself, and a spouse's decision to stay home during the marriage is not held against him or her, as the Colorado Supreme Court reaffirmed in LaFleur v. Pyfer (2021).
Talk to a Denver Divorce Attorney About Maintenance Eligibility
Aaron Herzberg is a divorce attorney in Greenwood Village, Colorado, serving Denver and the Front Range, with more than 30 years of trial experience and a practice focused on divorce, custody, and financially complex family law. Whether a spouse clears the threshold is decided on evidence assembled months before the hearing, and the property division and the maintenance claim have to be planned together. A first meeting is a paid consultation, not a free call and not a sales pitch.
Read the full guides on DenverDivorce.com: Spousal Maintenance in Colorado and Maintenance Defense in Colorado.
Educational information only, not legal advice. Reading this article does not create an attorney-client relationship.
