Spousal Maintenance: Confronting the Emotion

In negotiations, as in mediation, many divorce attorneys find spousal maintenance to be one of the most difficult areas of conflict to resolve. This may be because spousal support often represents something entirely different for each spouse, and for each couple: Is maintenance meant to compensate for pain and hurt when the other party is leaving the marriage or having an affair? Is maintenance required to reimburse one party for past contributions to the career of the other party or to the family? Is maintenance viewed as an entitlement to one party or a source of guilt or failure to another? Was spousal support part of the “social contract” created within the family, which determined that one parent would stay home with children? Or were the parties never able to agree on such a social contract in the family during the marriage but one parent stayed home anyway? Is maintenance a source of anger because the receiving spouse is not working to his or her full “potential”?

As divorce attorneys, we know there are so many more variations, and that most couples do not have the same underlying view of maintenance; therefore, they have difficulty coming to a resolution in negotiations. There are certainly the legal, statutory factors to consider in negotiations; we can compare and contrast cases and discuss each factor and how they might be resolved by a judge, but such discussions are usually devoid of the real feelings the parties have about spousal maintenance. Thus, the parties never seem to find a resolution that does not feel thrust upon them. It is akin to discussing “grounds” for divorce in New York, when each statutory “ground” never really matches the couple's reasons for separating, but the couple is forced to accept a ground to obtain a divorce nonetheless. The law must be discussed and considered; nevertheless, I would argue that helping the parties to express and understand their underlying feelings about spousal support, with both parties present in a room together, could help the parties proceed to settlement with far greater ease.

Breaking Down the Barriers

Most divorce attorneys are reluctant to confront strong emotion head-on. Divorce attorneys are typically more comfortable with the formal discourse involved in document production, depositions and even formulaic telephone negotiations with other attorneys. Emotion is reserved for the initial consultation with the client and sporadic “outbursts” on the telephone or in a private hallway at the courthouse. But showing emotion with the other spouse and/or attorney present is frowned upon and certainly viewed as unhelpful to a speedy settlement. Some attorneys feel it is acceptable and helpful to let clients “vent” for a short time, but do not see the benefit to responding to what they hear during such a venting session.

Working with a mediator or settling spousal maintenance through the collaborative law process are two settings in which such emotions are commonly explored, and the process is often very successful. Attorneys are generally retained to act as legal counselors in the mediation process, but such attorneys are not in the mediation room. In collaborative law, both attorneys are present with the parties and almost all negotiations take place in open and informal sessions where everyone is free to speak directly with everyone in the room, a non-litigation pact is signed by everyone at the onset of negotiations, and settlement options are often explored on flip-charts.

Case Studies

Following are examples of cases in which the parties used the collaborative law process and mediation. These examples help illustrate how confronting the emotions underneath maintenance helped the parties come to a resolution.

Case One

Our first case is a mediation involving a competent, professional couple married for 15 years, with two children ages 10 and 13. Each party earned over $200,000 each year until 1.5 years before their separation, when they decided that someone should be home with the children more, particularly because one child was experiencing mental health issues. The husband wanted the divorce, and the couple showed almost no emotion as they forged their way through the division of assets and personal property with spreadsheets only two MBAs could comprehend with such ease. When it came to spousal support, however, I was taken aback by the raw anger and resentment both parties exhibited: The wife was angry that the husband would no longer “work” on the marriage, that he had an affair and was simply “abandoning” his family. The husband resented the wife's reluctance to return to work to help him support the family, even when she was completely capable of doing so, because he perceived that the children were doing “just fine.” In other words, the wife was scared and felt abandoned and the husband felt frustrated that he was the only one being very practical and rational and wondering why his wife couldn't be practical also.

The parties were so upset over this “breakdown” of the mediation process — as they viewed it — that they did not schedule another session for weeks. When they returned to mediation, I was, this time, more prepared for the emotion. We spent a lot of time discussing their feelings and asking each to reflect on what the other party was feeling. I asked many questions, not so much concerning their bargaining positions, but about their underlying fears and what maintenance represented to them. As one would expect, there was some yelling and there were tears, but there were apologies as well. This is not to say we ignored the law or the parties' budgets, but when they settled on the support amount, they both knew why the amount made sense for their lives, even if it did not necessarily reflect the “state of the law” as expressed by their attorneys.

Case Two

The second case is a collaborative law divorce in which I represented the husband. The couple was married for 8 years. Both were college graduates, and they had one 5-year-old son. The wife worked part-time in a job she considered a “non-career job,” earning a minimal salary. The husband worked full-time earning $100,000 each year. The wife had grown up in a wealthy home, and her parents often helped the couple with monetary and other gifts that enabled the couple to live beyond their financial means. The husband reported feeling uncomfortable with the fact that they were living beyond their means throughout the marriage and wanted the wife to work toward a career, even if only part-time while their child was young. The wife was not only comfortable accepting such gifts from her parents, but resented her husband for not earning and spending more to meet the financial standard that she anticipated when she married him. She was also feeling extremely angry and rejected at the prospect of her marriage breaking up and wanted the husband to “take care of her.”

Each time the issue of spousal maintenance was raised in negotiations, the wife would become quite emotional and her attorney would suggest that they “shelve it” for a while and work on other issues. The third time the issue was raised and the wife's attorney suggested putting the conversation off, the wife turned to her attorney and asked, “When can we deal with it?” What ensued was a very emotional talk where the parties started out angry and moved into understanding each other's feelings, although retaining very different feelings themselves. They ultimately agreed on more spousal support than I expected my client to agree to, and the wife was satisfied. If the two attorneys had negotiated without clients present, or had simply focused on statutory factors in negotiations, I am not sure there would have been a settlement — and certainly not a settlement in which the parties played such a significant role in coming to the solution.

What Attorneys Can Learn

Most matrimonial attorneys ask, “What do I do with all this emotion? I'm not a therapist!” While many attorneys may be resistant to mediation and/or collaborative law as valid processes for a variety of reasons, matrimonial attorneys can still greatly benefit from the skills acquired in mediation and therapy trainings. Learning basic tools to compassionately question clients and their spouses, to reflect back feelings, to effectively listen to everyone in the room, and, ultimately, to move the couple toward understanding each other's underlying needs better — rather than simply ignoring each other's feelings and sticking doggedly to their own positions — will enable couples to move past impasses and come to satisfying settlements. It may be easier as attorneys to adhere to discussions involving statutory factors and case law, or simply to “shelve it” whenever discussions begins to get emotional, but staying with the emotion and confronting it will be more valuable to the settlement process and to your clients in the long run.

In negotiations, as in mediation, many divorce attorneys find spousal maintenance to be one of the most difficult areas of conflict to resolve. This may be because spousal support often represents something entirely different for each spouse, and for each couple: Is maintenance meant to compensate for pain and hurt when the other party is leaving the marriage or having an affair? Is maintenance required to reimburse one party for past contributions to the career of the other party or to the family? Is maintenance viewed as an entitlement to one party or a source of guilt or failure to another? Was spousal support part of the “social contract” created within the family, which determined that one parent would stay home with children? Or were the parties never able to agree on such a social contract in the family during the marriage but one parent stayed home anyway? Is maintenance a source of anger because the receiving spouse is not working to his or her full “potential”?

As divorce attorneys, we know there are so many more variations, and that most couples do not have the same underlying view of maintenance; therefore, they have difficulty coming to a resolution in negotiations. There are certainly the legal, statutory factors to consider in negotiations; we can compare and contrast cases and discuss each factor and how they might be resolved by a judge, but such discussions are usually devoid of the real feelings the parties have about spousal maintenance. Thus, the parties never seem to find a resolution that does not feel thrust upon them. It is akin to discussing “grounds” for divorce in New York, when each statutory “ground” never really matches the couple's reasons for separating, but the couple is forced to accept a ground to obtain a divorce nonetheless. The law must be discussed and considered; nevertheless, I would argue that helping the parties to express and understand their underlying feelings about spousal support, with both parties present in a room together, could help the parties proceed to settlement with far greater ease.

Breaking Down the Barriers

Most divorce attorneys are reluctant to confront strong emotion head-on. Divorce attorneys are typically more comfortable with the formal discourse involved in document production, depositions and even formulaic telephone negotiations with other attorneys. Emotion is reserved for the initial consultation with the client and sporadic “outbursts” on the telephone or in a private hallway at the courthouse. But showing emotion with the other spouse and/or attorney present is frowned upon and certainly viewed as unhelpful to a speedy settlement. Some attorneys feel it is acceptable and helpful to let clients “vent” for a short time, but do not see the benefit to responding to what they hear during such a venting session.

Working with a mediator or settling spousal maintenance through the collaborative law process are two settings in which such emotions are commonly explored, and the process is often very successful. Attorneys are generally retained to act as legal counselors in the mediation process, but such attorneys are not in the mediation room. In collaborative law, both attorneys are present with the parties and almost all negotiations take place in open and informal sessions where everyone is free to speak directly with everyone in the room, a non-litigation pact is signed by everyone at the onset of negotiations, and settlement options are often explored on flip-charts.

Case Studies

Following are examples of cases in which the parties used the collaborative law process and mediation. These examples help illustrate how confronting the emotions underneath maintenance helped the parties come to a resolution.

Case One

Our first case is a mediation involving a competent, professional couple married for 15 years, with two children ages 10 and 13. Each party earned over $200,000 each year until 1.5 years before their separation, when they decided that someone should be home with the children more, particularly because one child was experiencing mental health issues. The husband wanted the divorce, and the couple showed almost no emotion as they forged their way through the division of assets and personal property with spreadsheets only two MBAs could comprehend with such ease. When it came to spousal support, however, I was taken aback by the raw anger and resentment both parties exhibited: The wife was angry that the husband would no longer “work” on the marriage, that he had an affair and was simply “abandoning” his family. The husband resented the wife's reluctance to return to work to help him support the family, even when she was completely capable of doing so, because he perceived that the children were doing “just fine.” In other words, the wife was scared and felt abandoned and the husband felt frustrated that he was the only one being very practical and rational and wondering why his wife couldn't be practical also.

The parties were so upset over this “breakdown” of the mediation process — as they viewed it — that they did not schedule another session for weeks. When they returned to mediation, I was, this time, more prepared for the emotion. We spent a lot of time discussing their feelings and asking each to reflect on what the other party was feeling. I asked many questions, not so much concerning their bargaining positions, but about their underlying fears and what maintenance represented to them. As one would expect, there was some yelling and there were tears, but there were apologies as well. This is not to say we ignored the law or the parties' budgets, but when they settled on the support amount, they both knew why the amount made sense for their lives, even if it did not necessarily reflect the “state of the law” as expressed by their attorneys.

Case Two

The second case is a collaborative law divorce in which I represented the husband. The couple was married for 8 years. Both were college graduates, and they had one 5-year-old son. The wife worked part-time in a job she considered a “non-career job,” earning a minimal salary. The husband worked full-time earning $100,000 each year. The wife had grown up in a wealthy home, and her parents often helped the couple with monetary and other gifts that enabled the couple to live beyond their financial means. The husband reported feeling uncomfortable with the fact that they were living beyond their means throughout the marriage and wanted the wife to work toward a career, even if only part-time while their child was young. The wife was not only comfortable accepting such gifts from her parents, but resented her husband for not earning and spending more to meet the financial standard that she anticipated when she married him. She was also feeling extremely angry and rejected at the prospect of her marriage breaking up and wanted the husband to “take care of her.”

Each time the issue of spousal maintenance was raised in negotiations, the wife would become quite emotional and her attorney would suggest that they “shelve it” for a while and work on other issues. The third time the issue was raised and the wife's attorney suggested putting the conversation off, the wife turned to her attorney and asked, “When can we deal with it?” What ensued was a very emotional talk where the parties started out angry and moved into understanding each other's feelings, although retaining very different feelings themselves. They ultimately agreed on more spousal support than I expected my client to agree to, and the wife was satisfied. If the two attorneys had negotiated without clients present, or had simply focused on statutory factors in negotiations, I am not sure there would have been a settlement — and certainly not a settlement in which the parties played such a significant role in coming to the solution.

What Attorneys Can Learn

Most matrimonial attorneys ask, “What do I do with all this emotion? I'm not a therapist!” While many attorneys may be resistant to mediation and/or collaborative law as valid processes for a variety of reasons, matrimonial attorneys can still greatly benefit from the skills acquired in mediation and therapy trainings. Learning basic tools to compassionately question clients and their spouses, to reflect back feelings, to effectively listen to everyone in the room, and, ultimately, to move the couple toward understanding each other's underlying needs better — rather than simply ignoring each other's feelings and sticking doggedly to their own positions — will enable couples to move past impasses and come to satisfying settlements. It may be easier as attorneys to adhere to discussions involving statutory factors and case law, or simply to “shelve it” whenever discussions begins to get emotional, but staying with the emotion and confronting it will be more valuable to the settlement process and to your clients in the long run.