A member of Colorado’s second-highest court urged the state Supreme Court on Thursday to address a question that has produced inconsistent answers over five decades: When divorcing spouses agree that one must pay the other alimony, do they need to explicitly mention what will happen if the receiving spouse gets remarried?

The purpose of alimony, known in Colorado as “spousal maintenance,” is to assist spouses who cannot be financially self-sufficient immediately after their divorce — for example, if one partner earns significantly more than the other. Colorado law allows judges to order spousal maintenance, which can terminate under certain circumstances like death or remarriage.

The law cautions that the termination of payments upon the receiving partner’s remarriage can be overridden if the spouses have “otherwise agreed in writing.” The problem, however, is that the state’s Court of Appeals has shifted the standard repeatedly for what an agreement in writing requires.

“Given this whipsawing,” wrote Judge Grant T. Sullivan in an Aug. 28 concurring opinion, “I worry that parties, attorneys, and trial courts will remain without settled guidance.”

He added that in the absence of “legislative action, only the supreme court can remedy these concerns and resolve the conflict in this court’s precedent.”

In the case before the Court of Appeals, Christopher Clay Clark and Jessica Kay Clark divorced in 2022. Representing themselves in court, they signed an agreement using the judicial branch’s template, indicating Christopher Clark would pay Jessica Clark $1,500 a month for six years as spousal maintenance — $108,000 in total.

They checked a box indicating the terms “are contractual in nature and shall not be modified in the future.” They also handwrote a stipulation that the spousal maintenance “may not be modified or terminated.”

A year later, Jessica Clark remarried. Christopher Clark allegedly stopped making payments as a result. Jessica Clark sought to hold him in contempt, which he countered with a motion to terminate the monthly payments.

In June 2024, Mesa County Magistrate Daniel M. Garcia denied Christopher Clark’s motion. He noted the separation agreement’s non-modification language was “sufficiently clear to require Respondent (Christopher Clark) to continue to pay maintenance after the remarriage.”

Christopher Clark sought a review of Garcia’s order before District Court Judge Craig P. Henderson. In his order, Henderson narrated some of the history in the Court of Appeals’ decisions regarding how specific separation agreements must be to override the legal provision that spousal maintenance terminates upon remarriage.

In 1971, the Court of Appeals believed an “express statement” was necessary for payments to continue. In 1981, a different appellate panel concluded an explicit reference was not necessary. In 2001, a panel determined the “presence of a nonmodification clause” was enough to keep payments going even after remarriage.

Then, with the 2021 decision of In the Marriage of Cerrone, an appellate panel concluded a separation agreement needs to have “express” language allowing payments to continue. Otherwise, state law will automatically terminate the paying spouse’s obligation.

“Perhaps, the Colorado Supreme Court should ultimately determine this issue,” noted Henderson. Regardless, he believed even under the strict view of the Cerrone decision that Chrisopher Clark agreed to continue paying spousal maintenance after remarriage.

Christopher Clark turned to the Court of Appeals, arguing the separation agreement did not specifically mention what would happen in the event of remarriage. Therefore, Cerrone dictated that his obligations ceased upon Jessica Clark’s remarriage.

Because Court of Appeals panels are not obligated to follow each other’s decisions, even ones that are precedent-setting for the trial courts, the judges hearing the appeal indicated they did not feel the law required an explicit mention of remarriage in order for spousal maintenance to continue under a separation agreement.

“Instead, all the statute requires is an agreement that expressly or by clear implication indicates the parties’ intent that the payments continue,” wrote Judge David H. Yun for himself and Judge Ted C. Tow III. “Husband’s agreement to pay wife ‘the set amount’ of $108,000 over seventy-two months, when combined with the next sentence providing that their agreement ‘may not be . . . terminated,’ is a clear acknowledgment that husband will pay wife a total of $108,000 in maintenance regardless of any later events that could trigger termination, including wife’s remarriage.”

Writing separately, Sullivan agreed with the outcome but urged the Supreme Court to provide “much-needed clarity.”

“As this case illustrates,” he wrote, the appellate court’s “divergent interpretations will inevitably lead to inconsistent outcomes in similar cases, contrary to the General Assembly’s stated intent.”

He acknowledged that divorce attorneys can avoid confusion by specifying what precisely will happen when the person receiving spousal maintenance remarries.

“But that provides little solace for parties who have already signed their separation agreements. Nor does it solve the problem for parties who, as here, are navigating the legal system without the benefit of counsel,” Sullivan added.

According to the judicial branch’s statistics, three-quarters of litigants in domestic relations cases do not have attorneys. The Supreme Court recently established a program allowing for non-attorneys, known as licensed legal paraprofessionals, to represent clients in certain family law cases with a goal of increasing access to counsel.

The case is In the Marriage of Clark.