When a couple goes through the process of divorce, they encounter several concerns that need to be discussed. For partners with children, many of the biggest issues center around ensuring that the youngsters within the family continue to get the support and guidance they need. However, there are many other important elements to think about for both parents, and non-parents. One of the most common issues I address as a divorce attorney and in my work as a mediator is “spousal maintenance”, or alimony as it is sometimes called.
Many people elect to use divorce mediators when it comes to making decisions about maintenance, because alternative dispute resolution methods can allow them to retain some control over the decisions that are made about their future. Of course, while mediation is often considered to be a less combative form of dispute management, the discussions held around maintenance can be complex, as it means determining why a certain spouse believes they are entitled to support, and whether the amount given in that support should follow the guidelines set by the state of New York. Often, each party will have a different definition of what is “fair” according to their circumstances. However, I found that the non-judgmental and open discussion in mediation can provide a perfect platform on which to find a resolution that suits both sides in a divorce.
Managing Maintenance through Mediation
In divorce mediation, it’s my job to act as a neutral third party, facilitating a successful conversation between a divorcing couple. Though I’m not there to take sides, or push either client to making a decision, I can offer some guidance based on my position as a child custody lawyer and divorce attorney. My experience and knowledge within my field means that I can offer insights when doing mediation for maintenance into the guidelines that are often applied for spousal maintenance agreements, and even help couples to understand which factors a court might consider as being a valid reason for deviation from guideline amounts.
During a divorce mediation, I’ll often discuss many aspects of maintenance with my clients, starting by determining who believes that they should be entitled to a certain amount. Once we have the basis for a conversation, if we run into a disagreement, I can use my knowledge as a divorce lawyer to share information about the formula for maintenance used by today’s courts. The guidelines today are based on the income of the clients. This formula can determine who should be eligible to what amount of support, either in pendente lite (while the case is pending) situations, or for the long-term. Interestingly, the guidelines are still quite new, as they only came into effect for pendente lite maintenance when no-fault divorce was passed into New York during 2010 and became effective for post-divorce maintenance in 2016.
If the parties I’m speaking to in mediation feel unhappy with the guideline amounts suggested by the courts, we can begin to discuss some of the factors that might cause a judge to consider something beside the presumptive amount of maintenance. These factors can include things like the standard of living that was achieved during the marriage, the age and health of each party, the children or care of others that might prohibit one party’s ability to earn, each person’s ability to earn, and any other element that might be relevant to the amount deemed “fair” by New York Domestic Relations law.
Choosing Mediation to Deal with Maintenance
During my time as a divorce lawyer, and mediator, I’ve found that there are many reasons why a couple might choose to turn to mediation instead of litigation when making decisions about their future. In the case of spousal maintenance, working with a mediator means that my clients can come together and develop a personalized plan that both parties can live with, given the special circumstances of their situation. Mediation provides an excellent area in which couples can address their individual and joint liabilities, as well as their assets, budgets, and potential earnings, in order to make a decision about how much should be paid to either side. The issue of maintenance can then become one part of a larger plan to help each side of the couple move forward towards a stronger future.
I like to give each side equal opportunities to speak about their thoughts on maintenance. If we run into sticking points together we can consider caucusing, which is speaking with each side individually to come up with solutions. Financial neutrals can be employed to be a part of the mediation team in order to focus on the needs of each side as we discuss transitioning from one household to two. Review attorneys, which are always recommended, might come up with ideas that people can bring to the mediation table. Review attorneys are lawyers that each individual might hire to give them behind the scenes guidance and advice which it is not my role to do as a neutral mediator.
Unlike in litigation, where the courts will decide on what they believe to be fair for maintenance in a divorce situation, mediation means that divorcing couples are free to agree on what they believe to be fair, within reason. Although the agreement made will still need to be approved by the court, if both parties are happy with the results, then this can make it much easier to assign where maintenance should go when a marriage is dissolved. Additionally, during mediation, couples may consider dividing liabilities and assets in a manner that affects how much support is given.
During mediation, both sides will be given an equal opportunity to discuss the issues that may worry them about maintenance and other concerns that arise during divorce. I often discuss many different issues with my clients around maintenance, such as how the court awards temporary support, whether maintenance should continue when a new relationship begins, and other considerations. During that conversation, I will remain a neutral party, while also attempting to keep disruption and disputes to a minimum. For instance, if the conversation begins to get heated, or one party seems to be getting upset or overwhelmed, I may begin to implement strategies to reduce the risk of arguments.
Making Decisions in Mediation
Mediation can be an effective way for couples to make decisions that suit their specific needs when it comes to planning their lives after divorce. In the cause of spousal maintenance, the conversational nature of mediation can make it much easier for spouses to come to terms and make an agreement that’s suitable for everyone involved. As a mediator, child custody attorney, and divorce lawyer, it’s my job to act as a neutral party, and a source of information for my clients during the mediation process.
To find out more about spousal maintenance and mediation, read through some of our other blog posts, or feel free to reach out to me through my online contact form. You can also contact me by phone at 516-333-6555 to arrange your free half-hour initial consultation.