Why Might the Spouse Who Deserves a Longer Term of Maintenance Not Receive It?

{3:48 minutes to read} Even before the enactment of New York’s post-divorce maintenance statute, most mediators and attorneys worked with an informal but commonly accepted formula for determining the duration of maintenance based upon the length of the marriage. The longer the marriage, the longer the term of maintenance.

The new statute now provides an advisory schedule, also based on the length of the marriage, for the court to consider in determining the term of maintenance. Paradoxically, however, a longer-term marriage, which would typically result in a longer term of support, may in fact do just the opposite. Why? Because the paying spouse may be likely to retire before the end of the term.

In court, the retirement of the paying spouse, if known, could be considered in deciding the duration of maintenance. If it is not known at that time, the paying spouse would need to go back to court to seek a modification if he/she wishes to decrease the length of the support.

In mediation, you can have a discussion that takes into consideration all of the relevant factors without anyone having to petition the court, such as:

• The age and health of both parties;
• The likelihood that the paying spouse will work beyond a typical retirement age;
• The parties’ retirement plans before they decided to separate, and whether they need to be revised after a separation.

A balance needs to be struck between:
— The need of the spouse receiving support to have sufficient income; and
— The desire of the spouse paying support to retire at a reasonable age and reap the benefits of a long career.

Once again, an arbitrary formula in a statute may or may not apply to your particular situation. For example, a construction worker is not likely to be able to work past the age of 70, but a college professor certainly might. A police officer may retire at 50 but then have a second career. Someone in a stress-filled or predominantly young business may be urged to retire at an earlier age.

Looking at the interests and concerns of both parties will also entail a thorough discussion of the retirement assets available to each.

• If one party is going to continue working and saving for retirement, perhaps the other could receive more retirement assets in exchange for a shorter term of maintenance; or
• Perhaps budgets will ensure that both parties will have post-divorce savings for retirement; or
• If someone is going to go from full- to part-time work, provisions can be made for an appropriate reduction; or
• If there are insufficient retirement assets, you can look into the purchase of an annuity as noted by my colleague, Dan Burns, in No Pension? Why an Annuity Might be Right for You.

Mediation will also give the parties an outlet to talk about their fears of the future, such as living in poverty or working until the day they die. Neither of these outcomes is likely to happen in a mutually determined and balanced mediated agreement.