A Lightening Rod Issue
One of the most challenging issues to mediate is the issue of spousal support. This issue understandably gives rise to participants' dependence issues. Under the emotional difficulties of divorce, it is easy for parties to attach feelings of anger, abandonment, exploitation, lack of trust, and other resentments to the issue of spousal support. Payors may say things like, "I'm not getting divorced to pay spousal support forever." Needy recipients may say things like, "I don't want a penny from that S.O.B." The mediator needs to assist parties to recognize that they do, in fact, at least following a long-term marriage, have financial interdependence, and that it makes sense to reach a financial agreement that allows each of them, in due time, to develop financial independent.
Legal and Equal Suffering Standards
The general standard for determination of spousal support in most states is that each party is entitled to live in a style "not overly disproportionate to that which they enjoyed during the marriage." The overall determination of spousal support, both in amount and duration, is an equitable one for the court. There are no hard and fast rules. The mediator can turn the unpredictability of spousal support determinations at the courthouse to his or her advantage by assuring participants that it is only by agreement that they can eliminate risk and control definition of support arrangements. Mediation of issues of spousal support is made challenging by the fact that spousal support, like child support and parenting arrangements, is an inherently modifiable determination. Thus, so long as spousal support exists, an existing spousal support order can be modified as to amount or duration. For there to be a modification of spousal support, there must be a "substantial change in circumstances" (either in terms of earnings or need). While parties through their agreement cannot change the legal modifiability of spousal support, they can state certain assumptions and an intent that their arrangements be as non-modifiable as legally possible. In seeking to assist participants to reach agreement on spousal support issues, the mediator needs to assist the parties to resolve two basic issues: the amount of support and the duration of support.
Identifying Specific Purposes and Goals of Support
In working with both the amount and duration issues, It is helpful to assist mediating parties to identify the specific purposes for spousal support. For example, it may make abundant sense to pay higher level of spousal support in order to educate or train a dependent spouse in the short run, rather than maintain an elevated level of financial need for the duration. Particularly in shortfall situations, the parties may need to be reminded that there are two ways to bring a budget together. One way is to decrease expenses (which parties have typically already reduced to reasonable minimums). The other way is to assist the parties to develop additional income generating capacity.
The Amount of Support
Determining the amount of monthly (or other periodic) spousal support is, perhaps, the easier job. After taking care of their children's expenses, most mediating parties will agree that, at least for some time, they should have comparable standards of living. This may either mean that they will provide comparable income to each of them to meet their personal needs for some period of time, or that, after considering their differing set expenses (for example, housing, debts, etc.) they will seek to provide comparable discretionary income to each of them. In making such determinations, it is important to remember that spousal support payments, properly described and documented, are generally tax deductible to the payor spouse and taxable income to the recipient spouse. It may be helpful to involve a financial planner in seeking to determine final spousal support levels if the parties are desiring to balance their available incomes. It is typical for divorcing parties to find themselves in a "shortfall" position, wherein, even with relatively spartan budgeting, there simply is not enough income available in the family's system to meet what they view to be their necessary expenses. Under these type of circumstances, it is common for parties to adopt an "equal suffering" arrangement wherein each of the parties agree to have the same amount (or proportion) of personal needs go unmet. If the parties agree to this type of arrangement, it will likely also be desirable for them to have certain arrangements for notifying each other in the event of a defined increase or decrease of income, and also, possibly, appropriate for them to annually exchange tax returns and to review their support arrangements.