Can You Undo a Waiver of Maintenance/Spousal Support in Colorado?

An Examination of the Effect of a Waiver of Maintenance/Spousal Support, Whether a Waiver can be "Undone," and How to Ensure a Waiver is Permanent.

BY: L E E | L A W

If you're the party likely to pay maintenance in a divorce (assuming it is even awarded which requires an analysis of several factors as discussed in a separate blog), getting a waiver of maintenance is like getting a get out of jail free card in Monopoly--only better since this is real money on the line. If you're the party that waived maintenance (likely in exchange for a bigger slice of the pie on the property distribution), you may now be wondering if there is a way you can "undo" your waiver, which likely has the party who would have had to pay maintenance sweating bullets at this point. Fret not. Generally, there are no take-backs, as a waiver of maintenance is one in which it is waived forever. If you feel a "but" coming, that's likely because there is always an exception to the rule when dealing with the law. As such, let's first discuss the conditions in which a waiver may be given.


A Waiver of Maintenance is generally going to only come from an agreement by the parties, either by a Stipulation, a Joint Separation Agreement, Memorandum of Understanding, Prenuptial or Postnuptial Agreement, or other written agreement of the parties. It is possible for either party to waive maintenance, absent an agreement of the parties to do so. It should be noted that for the most part an oral agreement entered on the record in court is just as enforceable as a written agreement. Whether the waiver of maintenance will stand or not, starts with the actual wording used by the parties in their agreement. Generally speaking, if the parties come up with an agreement as to division of property and other financial issues, that agreement is binding on the court (except for any child-related issue-- child support, decision-making, parenting time). Pursuant to Colorado Revised Statute (("C.R.S.") 14-10-112(2), entitled Separation Agreement, "in a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement . . . are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that he separation agreement is unconscionable." C.R.S. 14-10-112 (2020). If the court finds the separation agreement to be unconscionable, then the court may "request the parties to submit a revised separation agreement or the court may make orders for the disposition of property, support and maintenance." C.R.S. 14-10-112 (2020). This can happen before the court issues the divorce decree (likely or before Permanent Orders). However, this can also happen post-decree via a Motion for C.R.C.P. Rule 60 Relief. In determining whether an agreement is conscionable, the court considers all aspects of the divorce, including property division, assignment of debt, and maintenance.


If the court finds the separation agreement is conscionable as to suppoort, maintenance and property then " Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation, and the parties shall be ordered to perform them; or if the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and shall state that the court has found the terms not unconscionable." C.R.S. 14-10-112 (2020). This is critical because the real issue is whether the separation agreement was drafted in a manner that prevents the court from altering the agreement based on any later motion from either party to do so. If there is no agreement of the parties, written or oral, then the real issue is this: did the parties decide and agree, pursuant to a conscionable agreement, to waive maintenance or did the judge hear evidence and decide not to award maintenance? If the Parties agreed, what are the exact terms they agreed to? Does the agreement state the maintenance is "non-modifiable"? Is the agreement silent on the court's continuing jurisdiction or does it specifically state the court lacks jurisdiction to modify? Was the agreement incorporated in the decree or does it specifically state it shall not be incorporated? All of the answers to these questions will tell you whether the court has jurisdiction to even entertain a motion to modify maintenance or any of the terms of the agreement. If permitted to do so, the court can re-open can reconsider all issues previously decided, including property division.


Something you should also consider is if one or both parties to a divorce are pro se or representing him/herself, in which case there are specific advisements that must be given to the pro se party in order for the pro se party to truly be capable of waiving his/her right to maintenance. If a pro se party waived his right to maintenance but was not properly advised before doing so this could also be a basis for him/her to seek Rule 60 relief to undo the waiver. In fact, the law specifically prohibits the court from accepting a waiver of maintenance from an unrepresented person unless the unrepresented person specifically states that he/she is aware of the maintenance guidelines. Pursuant to C.R.S. 14-10-114(7), "In any proceeding that falls within the maintenance guidelines set forth in subsection (3) of this section, at the time of either temporary orders or permanent orders, if either party is not represented by an attorney, the court shall not approve an agreement waiving maintenance or agreeing to an amount or term of maintenance that does not follow the maintenance guidelines unless the unrepresented party has indicated that he or she is aware of the maintenance guidelines pursuant to this section." C.R.S. 14-10-114 (2020). If the waiver of maintenance was done via a prenuptial and/or postnuptial agreement, different standards apply as the issue will be whether the agreement itself is enforceable. You can check out our LAW | BLOG and read up on marriage agreements and the enforceability of the same.


Ultimately, it is very unlikey that a waiver of maintewnancve can be undone, but there is always an exception to the rule. The issue raised in this article is complex and involves detailed review of any and all agreements of the parties, the specific language used and omitted, the record and tesitmony, the decree and the language used therein. You should consult with an attorney for a more case-specific analysis. You can contact Attorney Linda Lee at LEE | LAW at 303-222-7068 or online at www.leeforlaw.com.

This is for educational purposes only and does not constitute legal advice. This does not establish a client-attorney relationship. For legal advice, contact LEE | LAW.




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