When a couple files for divorce, it is not uncommon for a lower-earning spouse (or the spouse with the lower earning capacity) to need financial assistance in order to get back on his or her feet. This helps through the transition and/or to secure their longer-term financial future into retirement.
This is where post-divorce alimony payments can be of great assistance if you are in this position at the time of a divorce. While alimony can be one of the biggest sticking points in a divorce settlement, you don't have to go to court to work out alimony. You can mediate.
How Alimony is Determined in Court vs. Private Mediation: An Example
In court in PA, an assigned judge uses 17 factors (listed below) to determine whether alimony is necessary or not. The judge also orders how much will be paid from one spouse to another, the manner in which these payments will be made, and for how long.
This can take months, if not several years to resolve and can be quite a tedious and exhausting process. Back and forth negotiations between opposing attorneys and numerous in-person court hearings in equitable distribution may be necessary, racking up potentially exhorbitant legal fees.
The good news is that spouses never have to go to court to settle differences over alimony.
An attorney-mediator who is experienced in divorce and alimony matters in court, can educate both you and your spouse on the general mechanics of alimony, its function and purpose, and the rationale behind each of the 17 factors in the alimony statute so that couples are placed in a better position to apply alimony to their particular needs and circumstances. The attorney-mediator is also present during the negotiation as a neutral third-party to ensure a fair process that is designed to protect and provide for both spouses involved.
In this sense, if you and spouse mediate, you have the best of both worlds in that you gain a clear understanding of how alimony works and how it is applied, as well as a reasonable range or general reference for how a court would typically view your particular case. From there, you retain control and discretion over how alimony will be resolved for your case, rather than placing these very critical decisions in the hands of a court system with unpredictable outcomes that are outside of your control.
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Separate Household Budgets: A Tool for Fairness
Here's something that courts don't necessarily require, but is actually one of the best ways I have found to help spouses resolve alimony in a mediated divorce. I have each spouse create a budget that reflects an estimate of their post-divorce living expenses which allows them to gain a much better sense of what they will need in order to comfortably live in a household, and also be able to adequately support their children in that household, if children are involved. Likewise, the payer of alimony will prepare their own budget to determine how much they are reasonably able to afford to pay and for how long, consistent with the financial needs of the payee spouse.
At the end of the day, in divorce mediation, spouses feel that the payments end up being realistic and affordable.
Below are the 17 alimony factors that we thoroughly discuss and consider during the negotiation to achieve the fairest alimony settlement possible:
The 17 Factors of Alimony in PA
- The relative earnings of both spouses.
- The duration of the marriage.
- The ages and physical, mental and emotional states of the two spouses.
- The sources of income of both spouses. This includes medical, retirement, insurance or other benefits.
- The expected future earnings and inheritances of the two spouses.
- The degree to which one spouse has contributed to the other spouse’s education, training or increased earning potential.
- The degree to which a spouse will be financially affected by their position as the custodian of a minor child.
- The standard of living of the spouses established during the marriage.
- The relative education of the parties. This also considers the amount of time it would take for the spouse seeking alimony to acquire the education or training necessary to find employment.
- The relative assets and liabilities of the two spouses.
- The property each spouse brought to the marriage.
- The degree a spouse contributed as a homemaker.
- The relative needs of the two spouses.
- The marital misconduct of either of the spouses during the marriage. “Abuse” is in this context shall have the meaning given to it under Section 6102.
- The federal, state and local tax consequences of the alimony.
- Whether the spouse seeking alimony lacks sufficient property, including items in Chapter 35 relating to property rights, to provide for their reasonable needs.
- Whether the spouse seeking alimony is incapable of supporting themselves through appropriate employment.
Notice that Gender in Not Considered
It's important to note that neither in court, nor in mediation, is gender taken into account as a factor to determine alimony. Alimony is strictly focused on the true financial needs of the spouse in need of the same. According to a recent report by Pew Research Social and Demographic Trends, the number of fathers who are staying-at-home to raise kids has significantly increased, especially those in their 40's, and so it is becoming more commonplace than ever for men to receive alimony payments as part of a divorce settlement.
Different Process - But Equally Enforceable
Once alimony is decided in mediation, these terms are then put into the marital settlement agreement which becomes a fully enforceable court order that legally protects both parties in the same way as if they had gone to court to resolve alimony.
Because spouses arrived at the alimony number with such scrutiny together, they are often more likely to believe the payment is fair and therefore abide by their agreement.
Changes to Alimony are Easier in Mediation
If the circumstances of either spouse change significantly, the court can decide to modify, suspend or terminate the alimony order.
With mediation, there is no need to go to court if circumstances change. The agreement can have provisions in it that state that alimony can be modified under special conditions like changes in future income, remarriage, or disability.
I hope this article has provided you with a greater sense of security about the efficacy of the divorce mediation process to adequately resolve your alimony issue, to the satisfaction of both you and your spouse.
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Cris Pastore, Esq. is president and attorney-mediator at Main Line Family Law Center, a divorce mediation firm with 7 offices along the Main Line and Center City, Philadelphia. A practicing attorney for over 20 years, Cris has focused exclusively on divorce mediation since 2007, when he grew increasingly frustrated by destructive nature of the court-contested divorce process. Cris has made it his personal mission to revolutionize this area of practice to preserve family relationships and help families emerge healthy and whole. Follow Cris at @healthy_divorce.