Whenever I do mediation, I’m presented with adverse parties, many of whom are angry and upset that they are not at fault for the divorce, and yet are facing the imposition of tremendous financial burdens. In mediation, I assist divorcing spouses to reframe the discussions away from what is “owed,” and toward what each party needs to have a happy and fulfilling post-divorce life.

In my experience, a spouse who is dragged kicking and screaming into a support award will tend to resist payment with everything they’ve got.  If, for example, the paying spouse is a salesperson or executive whose earnings are based on their effort, a burdensome award can have the effect of “killing the goose that laid the golden egg.”  I see over and over again the sharp decline of supporting spouses’ earnings after a financially devastating award of spousal support (alimony).

In settlement discussions success or failure often rides on how the parties perceive, or “frame” the spousal support obligation.  When mediating, I find it invaluable for the supporting spouse to reframe his or her payment obligation, understanding it as rehabilitative, not compensatory.  If a payor understands the purpose of the award as helping the supported spouse get on his or her feet financially, the payor is often more willing to shoulder the burden and pay the award.  Conversely, I find that as a general rule, payors tend to resist payment that the other party demands as “compensation” for their home-making or career deferral.

I also find that giving the paying spouse a light at the end of the tunnel (one that is not the headlamp of an oncoming train) reduces or eliminates expensive and hurtful litigation, and creates a high likelihood that the supporting spouse will pay.

A willing payor is an intangible but real benefit, one that the receiving spouse is wise to consider before insisting on “what I’m entitled to under the law.”

Burdensome spousal support awards are like poison to the goose that lays the golden eggs, because they are made without regard to whether they are just.  California law awards spousal support (alimony) from moneyed spouses to less moneyed spouses based on Family Code section 4320.  But if you click on the link, you’ll see that the law does not take justice or fairness into account in making the award; such awards are made without regard to marital fault.

Can you imagine what would happen if a politician proposed a tax that would confiscate about half of a hard-working person’s take-home pay?  There would be a march on Washington.  Yet every day in California family court, former spouses are ordered to make this type of payment, which continues until the death of either party, the marriage of the supported spouse or further order of the court.  The ability of the supporting spouse to ask for a reduction or termination of the award is small consolation, as these awards are often hard to modify and/or terminate.

As I have said in previous posts, the traditional rationale for spousal support awards has been that a party who deferred his or her career to make a home and raise children should not have to give up the marital standard of living just because the other party wants a divorce.  But in a “no fault” system, the law gives no advantage to the person  who doesn’t want the divorce (a petitioner has the same right to spousal support as a Respondent does), nor does the breaking of marital vows have even the slightest effect in mitigating the award.

Therefore, a “stay at home” spouse in a long marriage can have a series of affairs, waste community assets and even practice extreme cruelty and the court will award that spouse an open-ended spousal support award.

Conversely, an “innocent” spouse who has worked 2 jobs and raised the kids single-handedly may find themselves paying a couch-potato spouse, when the very cause of the divorce is the latter’s unwillingness to pull their financial weight.

The good news is, there is a solution for those who go to mediation.  In mediation, our approach is to look at the long-term goals of the parties, and also at the resources in the estate (including the supporting spouse’s income and the career abilities of the supported spouse) that may be used to achieve those goals. 

The points I hope you’ll take away from this article are:

  • Supporting spouses have to come to grips with their perception (and resulting resentment) that the award is unfair.  In a long marriage with a large income gap, there will likely be a lengthy and burdensome spousal support order.  That’s just reality.
  • Supporting spouses must be careful not to “kill the goose that laid the golden egg.”  At some point of wealth confiscation, it’s just not worth it for the supporting spouse to persevere in a high-paying, but difficult and stressful job.

Reframing the question in terms of both parties’ post-divorce goals and ambitions, and what resources are available to achieve those goals, will make your case much easier to settle and incentivize the paying spouse’s long-term compliance with the resulting award.

Hoping this helps in negotiating a settlement of your divorce, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

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