Spousal support (otherwise known as alimony) is one of the most challenging issues to discuss during your divorce, especially when the spouses are likely in different financial positions – with one making more money and the other providing support to the household in other ways. The lower-earning spouse may be afraid for the future. The higher-earning spouse may not want to continue to support the ex-spouse longer than needed. They are, after all, looking to end the relationship.
How then do you determine spousal support? The divorce process you choose will likely determine the answer.
If you choose the litigation process, the law, not you and your spouse, will drive the range of support that you may receive. Under Oregon law, there are three types of spousal support in Oregon: transitional, compensatory, and maintenance support. Transitional support allows one spouse to transition into the job market and become self-sufficient. Compensatory support pays the spouse who made significant contributions to the other spouse's education, training, or career. Maintenance support helps make up for a wide disparity in earning capacity between the spouses and provides an ongoing supplement to one spouse for a short or long duration. In determining the level of support, the judge is going to apply a series of factors to determine the duration and level of support – all of which include any factors that "the court deems just and equitable." ORS 107.105(1)(d)(A)-(C).
In litigation, your attorney may advise you to settle the case based on an expectation of what a judge will do, compared to what other judges have done in similar circumstances and who have applied these different factors and also based on rules of thumb used by the attorneys. Depending on the attorney's negotiation skills, you may end up with a reasonable settlement – but, regardless, the decision will be driven by the attorneys and the legal process.
Litigation is a top-down approach – where you are at the end of the decision-making process. In comparison, the Collaborative Divorce and Mediation processes empowers you to control the spousal support decision-making process.
Collaborative Divorce and Mediation are both forward-looking processes and rely on information that is immediately at hand. For example, it makes sense to start discussing support with a realistic budget for each spouse. In Collaborative Divorce, the family can use their Collaborative Team to evaluate their short and long-term needs and determine an appropriate resolution for them. In mediation, the impartial third party can help guide a discussion about the short and long-term needs. The spouses share all information, and everyone can evaluate what is available for spousal support.
Spousal support conversations are not easy. It's natural to be afraid about the financial future. But, as both parties look to have these difficult conversations about financial support, they must share their budgetary needs and interests. Open and frank discussions about financial interests, supported by the Collaborative Team or impartial mediator, may open up productive discussions about the amount of support and how long the support will continue. The family drives the support conversation. Collaborative Divorce and mediation both encourage an open dialogue on these difficult questions and empower the clients to come together to make difficult decisions.