Cap If You Pay, Open If You Receive

If you pay maintenance, you want to negotiate a settlement that puts a limit on the amount and time you’ll make payments. You want a reasonable agreement that is acceptable to your spouse, to minimize incidents of future conflict, yet you also want to be free and clear of the responsibility as soon as possible.

If you are to receive maintenance payments, you are best protected by having your agreement as open-ended as possible, to cover any future contingencies with an upward adjustment. Again, this is subject to negotiation, and it is not in your interests to alienate your spouse by attempting to force an arrangement on him or her that appears to be an unfair and onerous burden. You’ll then very likely have difficulty collecting your payments and can look forward to additional court visits and unnecessary venom between you.

There are various types of maintenance arrangements. Sometimes maintenance can be capped and paid in a lump sum. In other instances, the Court will require the payments to accommodate specific circumstances.

For example, the judge may want to determine what amount is needed to assist your spouse in getting training and support to earn income independently. Courts try to protect a spouse from the economic devastation of ending a long-term marriage, or against loss of earning capacity due to the potential reoccurrence of an illness, such as cancer.

The timing of when spousal support obligations end can also vary. In some cases, payments stop when a spouse remarries or moves in with a new partner.

Consider hiring a vocational expert to assess your spouse’s earning potential. What your husband or wife is capable of earning will influence the maintenance agreement that is worked out between you. A vocational expert can assess skills, aptitudes and earning potential, and make a credible recommendation to help your attorney negotiate the best possible deal on maintenance for you.

The point of maintenance is to assist with financial transition. If your partner doesn’t work presently but is capable of earning income, maintenance helps with moving from dependency to economic self-sufficiency. This is also the case if your spouse is underemployed, and can earn more than he or she is right now. The goal is for both parties to be independent and contribute to the new financial needs of two households.

The best approach is to maintain an attitude of helping your spouse adjust to the new reality of divorce. If you can afford it, it’s worth investing some money to help your partner adapt better to new economic circumstances. This can include paying for a course of therapy if adjusting to a new work ethic or situation is traumatic. Also, help your spouse establish his or her own credit if necessary.

For example, McAdams Law represented a wife with bipolar disorder. There were no children. The firm obtained a divorce settlement after a five-year marriage, in which the husband bought out her fifty percent interest in their marital home, and agreed to pay her maintenance until she finished her master’s degree.

Each situation is unique. Whether you’re paying or receiving, the rule is to anticipate future needs and have your attorney write an agreement that avoids either of you having to go back to court and litigate.

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Call 212-406-5145 or email McAdams Law to discuss your situation.

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