Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!


Tuesday, April 14, 2015

Mediating Alimony in Divorce - Coming to an Agreement

To mediate an Alimony matter incident to a separation or divorce in Maryland, I take a multiple step approach.

Step 1- Have the parties come to their own agreements relating to Alimony?  Do their agreements address the monthly sum (usually yes) and the duration for the Alimony (usually not.)

If so, it is not the mediator's role to upset the parties' agreements.  That said, the mediator should explore the facts surrounding the parties' agreement for several reasons.  For instance, when was the agreement was made?  Did the parties have a full understanding of their own needs at the time of the discussion?  Was a parties' agreement made at a time when there was an imbalance of power?  If the parties have been living according to the Alimony agreement, has either party has incurred debt during that time frame? Have financial circumstances of the parties changed since they made their agreement?  Have the parties considered the tax implications of Alimony? In general, cash Alimony is deductible by the payor and included in the gross income of the payee for tax purposes.

Step 2-  Analyzing the need for Alimony by one party and the ability to pay Alimony by the other.

It is important to accurately quantify the amount of "need" of the proposed Alimony recipient.  Care must be taken to review past expenses to accurately tally all current needs.  If the residence costs are expected to change (or any other major expenses) then an educated assessment of the new residential costs is a must-do.  The same analysis must be done for the prospective payor of future Alimony.  Once the parties have quantified their respective "need" for Alimony and the "ability to pay" Alimony there should be a range in which to work the negotiations.

Step 3- Alimony- for how long?

There needs to be a practical discussion relating to how long the Alimony will be paid.  If the underlying purpose of Alimony has a "goal" the end-date is explored from this practical analysis.  Are you trying to keep a child in a particular school district until graduation? Or does the Alimony recipient need to educationally rehabilitate his or her skills, and if so, what is the timetable? Do we need to discuss the anticipated retirement date of the payor?  In the case of an anticipated retirement date, what will happen if the payor does not in fact retire?

Step 4- Determining the Circumstances that will Terminate Alimony.

Alimony always ends upon death of one of the parties, and almost always ends upon the recipient's remarriage.   Sometimes the parties make an agreement to terminate the Alimony if the recipient is cohabiting with a third party in a "marriage-like" relationship.

Step 5-  Obtaining Legal Advice on the issue of Alimony.

There are formulas, which are not the law  in the State of Maryland, but which may be helpful in narrowing the negotiations relating to Alimony.   Sometimes a mediator will utilize these formulas to see if the agreed-upon range of Alimony negotiated falls within the parameters being discussed.  However, the best way to understand how the judges in the county in which the case might be tried might rule.  The only way to get that answer is to speak to your consulting attorneys.   I often recommend that in between mediation negotiation sessions when Alimony is at issue.   Having those two opinions from two lawyers is another tool to help narrow the issue, used in mediation.  Consulting an attorney in between mediation session for such a critical issue makes good sense where there is an impasse.   In addition, consulting an attorney at this juncture helps the parties come to an agreement which will not derail the negotiations at the attorney review phase of the mediation agreement.


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