In this case, the parties divorced after an approximately 22-year marriage. The parties reached complete agreements and submitted a separation agreement using the standard form JDF 1115. Note: the current version is slightly different than the version used by the parties in this case.
In the spousal maintenance section of that form, the parties agreed that Husband would pay to Wife spousal maintenance in the amount of $1,500 per month for a period of approximately six years. The parties’ agreement then selected the checkbox that stated “[t]he terms of this Maintenance Agreement are contractual in nature and shall not be modified in the future.”
In a separate section of the separation agreement, the parties handwrote “[Husband] agrees to pay [Wife] the set amount of $108,000, payable to wife the 21st of every month for 72 months (6 years). Agreement is set and may not be modified or terminated.”
Approximately a year later, Wife asked the court to hold Husband in contempt for non-payment of spousal maintenance. Husband responded by asking the court to terminate his maintenance obligation pursuant to C.R.S. 14-10-122(2)(a)(III) because Wife remarried. Wife admitted that she remarried, but argued that the parties’ separation agreement enabled spousal maintenance to survive her remarriage.
The magistrate and, subsequently, the district court agreed with Wife. The district court reasoned that the parties expressly agreed in their separation agreement that spousal maintenance would “not be modified or terminated.”
Husband appealed.
Remarriage and termination of spousal maintenance
Pursuant to C.R.S. 14-10-122(2)(a), “unless otherwise agreed in writing or expressly provided in the decree”, spousal maintenance terminates upon:
(I) The death of either party;
(II) The end of the maintenance term, unless a motion for modification is filed prior to the expiration of the term;
(III) The remarriage of or the establishment of a civil union by the party receiving maintenance; or
(IV) A court order terminating maintenance
What exactly is sufficient to constitute “agreed in writing” has been the subject of several appeals. In one of those appeals, Cerrone v. Cerrone, a different division of the Colorado Court of Appeals held that “a separation agreement or decree must include an ‘express provision’ that maintenance will continue even if the recipient spouse remarries.”
So if the Cerrone opinion applied, Husband would prevail. But, under Colorado law, each individual division of the Court of Appeals functions independently and therefore is not bound to decisions reached by other divisions.
In this case, the Court of Appeals declined to follow the prescription in Cerrone that a separation agreement must expressly state intent for spousal maintenance to continue after a recipient spouse remarries. Instead, it relied on another lineage of cases addressing this issue and interpreted the statute to require only a “writing that ‘expressly or by clear implication provides that the payments will continue after’ the recipient spouse remarries.”
Conclusion
Different panels or divisions of appellate courts often reach different results with similar fact patterns. As such, there is some unavoidable risk that even when case law seemingly supports your position it may not be applied—or at least not to the extent that you hope. The divergence between the Cerrone opinion and this one really emphasizes how critical the details, even as small as particular word choice, can be when preparing a separation agreement.