Colorado Court of Appeals Rules Retroactive Maintenance Can Be Awarded Prior to the Jurisdiction of the Court

Divorce proceedings

In RE Marriage of Stradtmann, 2021 COA 145, 2021 Colo. App.  

In the marriage of Stradtmann, the Court of Appeals held that an award of retroactive maintenance to a date prior to the Court’s Jurisdiction, or in this case back to the parties initial separation which predated the filing of the action was allowed.  

The Court considered C.R.S § 14-10-114 (1)(a)1 2021, and found that the maintenance statute dictates that the Court can award the support when “a spouse needs support and the other spouse has the ability to pay support” and “for a term that is fair and equitable to both parties," § 14-10-114(2). Further, the Court considered that the statute also provides that the Court "shall determine the term for payment of temporary maintenance” 14-10-114(4)(a). 

The issue in the Stradtman Dissolution proceedings was could the Court award of maintenance retroactively to a date previous to the Court’s jurisdiction in the case such as when the parties separated.  The Court found that the broad language in the statute does not expressly prohibit any such award. 

According to Giduck v. Niblet2, the Court needs personal jurisdiction over parties before enforceable orders can be entered. Additionally, the appellate Court referenced both In re the Marriage of Booker3 and In re the Marriage of Lohman4 wherein it was determined that “In dissolution of marriage proceedings, a trial court must have personal jurisdiction over the parties as well as subject matter jurisdiction to enter orders establishing financial responsibilities and property interests of the parties”.  

Temporary Obligations before the Petition date are not expressly prohibited by law, and the General Assembly removed the reference to “at the time of the parties’ physical separation or filing of the Petition or service upon the respondent, whichever occurs last,”5  in 2014. The statute now reads, “[t]he court shall determine the term for payment of temporary maintenance.”6 This modified provision removes any direction to the Court of when an award must begin7, so long as the award is fair to both parties8. 

Parties will now be able to argue for an earlier starting date for when maintenance can commence but are still restricted as the Court pointed out, to the filing of the petition for any child support retroactivity.  6

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