Spousal Support (or alimony) can be a challenging issue during divorce mediation. How much support is paid and for how long may need to be determined during mediation. After a divorce or separation, one client may choose or be required to pay monetary support to the other for a pre-determined length or as a lump-sum payment. Clients should know that a court cannot order spousal support later unless ordered in the original divorce judgment.
In particular, some clients ask whether spousal support payment is meant to compensate a stay-at-home parent? Other clients, who worked outside the home, ask how much the other spouse needs to be compensated when they could have worked outside the home but stayed at home with the children and took care of the family?
Oregon has three types of Spousal Support. In the situation posed here, Compensatory Support may be appropriate for the stay-at-home parent if that parent made a “significant financial or other contribution” to the “education, training, vocational skills, career, or earning capacity of the other party.” ORS 107.105(1)(d)(B).
WHAT TYPES OF SPOUSAL SUPPORT MAY BE APPROPRIATE FOR A STAY-AT-HOME PARENT?
Oregon recognizes three types of spousal Support.
- Transitional Support is support from one client to the other to allow the second to re-enter the job market after a long absence or obtain additional training necessary to secure employment that will allow that client to become self-sufficient.
- Maintenance Support will help provide one client with an extended period of support to equalize a wide disparity of earning capacity between the clients. This type of support may be appropriate in various situations, such as when one client has a much lower paying profession or when one client has significant health care issues that limit the ability to work. Usually, the client receiving support may not replicate the marital lifestyle without the support. Maintenance Support can be for a specified time or indefinite.
- Compensatory Support may reimburse one client for significant financial or other contributions to the other spouse’s education, training, career, or earning capacity throughout the marriage. Essentially, when one client contributed or sacrificed throughout the marriage to allow the other client the opportunity to make advancements in their earning power, the Support is reimbursement for that sacrifice.
Clients may and probably should seek more than one type of support – for example, transitional support or maintenance support, as well as Compensatory Support. These distinctions may be important. For instance, if it is necessary to seek a future support modification, Maintenance or Transitional Support is easier to modify than Compensatory Support.
In addition, the stay-at-home parent may request that they be compensated at a higher rate for a portion of the marital estate since they have not been able to establish the benefits that may come from their education or career. This may be a request for a larger share of retirement funds.
HOW ARE DURATION AND AMOUNT OF SUPPORT DETERMINED?
No formula identifies how much the stay-at-home parent’s contribution is worth (for example, no formula lists how much per hour a stay-at-home parent should have made, even though stay-at-home parents provide a valuable service to the family.) Like all spousal support in Oregon, the duration and amount of Compensatory Support are determined by the family’s situation. The statute requires that clients consider the duration of the marriage, the amount, duration, and nature of the client’s contribution, the extent to which the marital estate already benefited from the contribution, and the relative earning capacity of the clients. No calculator determines the amount or the duration of support. If the stay-at-home parent contributed significantly to the earning ability of the other, Compensatory Support should be within the scope of what can be provided. Support should be of an amount and duration that can be sustained. And this is why Compensatory Support should be considered in conjunction with other types of support, such as Maintenance Support to maintain the standard of living to the extent possible and Transitional Support to help the stay-at-home parent transition to a career.
Ultimately, clients must weigh the equities and determine fairness on both sides. Suppose one mediation client is seeking Compensatory Support. In that case, the clients should work with the mediator to agree that Compensatory Support is appropriate, whether all of the support will be Compensatory Support or another type of Support, and for how long.
HOW SHOULD PARENTS PREPARE TO MAKE COMPENSATORY SUPPORT DECISIONS DURING MEDIATION?
Suppose one client in mediation is seeking Compensatory Support. In that case, that client should be ready to talk about their underlying interests and why that support was necessary for the family and the spouse’s future. It is not enough to say that I cared for the children. The why of that contribution is more important – focusing on implicit and explicit decisions made together as parents, how it was essential to and benefited the family and how it supported the other spouse. It is also imperative that both clients bring their proposed post-divorce budgets to the mediation. These budgets often drive financial decisions, such as how much support one client needs and how much support the other client can provide.
These are complex and important conversations. Be prepared to be patient and to have initial disagreements. Many clients have different perspectives on why they are getting divorced and how their future should appear. But, those conversations are the heart of agreements during mediation on vital support questions. Also, support can be complex. Each client should consult an attorney to work through the complexities before mediation.
This description spousal support is meant solely as an overview. It is not meant as legal advice for your current situation. You should consult with your attorney for any legal advice.