Why Mediate Maintenance?

{3:00 minutes to read} I was at a mediation conference recently and listened to a presenter talk about the new spousal maintenance guidelines. This got me thinking: a spouse who chooses to not work, or to work part time for a portion of the marriage, can face enormous financial difficulties following a divorce. After hearing the maintenance presentation, I am concerned that the new law may not be fair to the individual who left the workforce for a period of time.

Let’s take a look at the case of Jack and Jill, who have been married for 25 years, but due to a dispute over a pail of water, are now divorcing. Jack took several years off from his job and stayed home with their children until they were of school age, then returned to a full-time job. Jill’s current annual salary is $150,000, while Jack’s is $50,000.

According to the new NYS Maintenance Guidelines, Jack could receive about $2,375 per month in maintenance for a period of 9-12 years, assuming there are no child support obligations. This would mean that Jack’s monthly income would be about $6,500 while Jill’s income would be about $10,000/month.

They decided together that Jack would stay home with their children. But this decision caused Jack to be at a significant disadvantage when he went back to work.

• He was several years behind in his field, and his skills were no longer up-to-date, which impacted his earning capacity.  
• He will also need to use a greater percentage of his monthly income to support himself, leaving less to contribute to his own retirement.

On the other hand, Jill will have an additional $3,500 a month to pay her expenses and continue building her own retirement nest egg.

While the intention of the law was to create consistency and predictability in the outcome, it may have sacrificed fairness in doing so.

In mediation, a couple can create a fair agreement that gives the spouse who stayed home a chance to “catch up,” by equalizing the monthly income and providing both spouses with the resources he or she needs to live and plan for the future.