Vette: Enforce spousal maintenance or risk a defense

Friday, Jan. 12, 2018 10:48 PM
Nicole Vette

If you are owed spousal maintenance, it is not advisable to delay in asserting your rights against a non-paying former spouse.

A recent Colorado Court of Appeals decision – In re the Marriage of Kann, issued in July of 2017 – made it clear that “laches” is an available affirmative defense against the delayed assertion of rights relating to the payment of spousal maintenance.

Laches is a defense designed to shield parties from untimely claims made against them. It is a defense originating from a sense of fairness and may be asserted against a party who has unfairly delayed in seeking enforcement of a right.

To assert a laches defense, three elements must be shown:

Full knowledge of the facts by the party whom the defense is asserted against. An unreasonable delay in enforcing a right. The party asserting the defense was harmed by the delay and relied on the lack of enforcement by the entitled party. In Colorado, past-due spousal maintenance accrues interest. The laches defense can also be applied to the associated accrued interest. By way of example, Husband and Wife are divorced in 2010. Wife is ordered to pay Husband spousal maintenance of $1,000 per month for 10 years (also referred to as alimony in other jurisdictions). Wife does not pay. Husband delays in asserting his rights to the spousal maintenance. In 2017, the Husband seeks entry of a judgment against the Wife for all of the unpaid spousal maintenance plus interest. The Wife can attempt to defend against the Husband’s claim by asserting the laches defense.

The trial court would hear the testimony and evidence of the parties and enter a ruling based on the facts of the particular case. The ability to assert the laches defense does not guarantee success, however, as it relates to an entitlement of spousal maintenance; it is best to assert your claims before too much time lapses so as to not subject yourself to a laches defense against enforcement.

The party asserting the laches defense would carry the burden of proving the necessary elements to the court. The unreasonable delay requirement is very fact-sensitive. Courts are tasked with weighing both the amount of time which has elapsed and the circumstances regarding why the right was not timely enforced. The delay must also accompany a showing of unfairness to the other party.

One purpose of this defense is to encourage parties to promptly seek what they are owed in lieu of waiting, which can lead to exponential growth due to statutory interest. Spousal maintenance awards can be very long in duration, especially in marriages greater than 20 years, which can result in awards of spousal maintenance of indefinite terms. Interest on the past-due spousal maintenance can become excessive if not timely enforced.

In the Kann case, the wife was awarded $1,200 per month in spousal maintenance for the remainder of her life. The parties divorced in 1989. The wife waited until 2015 to assert her rights to the unpaid spousal maintenance in the amount of $289,200 and also requested interest of $231,436.32. The court of appeals found that the laches defense, which was raised by the husband and initially rejected by the trial court, should have been available to the husband, and the case was remanded for consideration of the laches defense at the trial level.

It is important to note that child support is treated somewhat differently than spousal maintenance, as the principal amount of the child support owed belongs to the child and not to the recipient parent. Accordingly, the principal portion of past-due child support cannot be challenged by a laches defense. The accrued interest on past-due child support can be challenged with a laches defense. The purpose of this is to encourage parents to enforce their child support rights promptly and to protect the right of children to support from their parents.

If you have a former spouse who has not fulfilled an obligation to pay you spousal maintenance, do not let too much time elapse before asserting your claims. The laches defense is certainly not insurmountable, but it is better avoided.

Nicole Vette is an attorney with the Durango law firm of Anderson & Baker, LLC, which specializes in domestic relationship law. Reach her at