How I Think About Spousal Maintenance Negotiations

Spousal maintenance (the artist formerly known as alimony), like most other aspects of a divorce case, is governed by a multi-factor list of things the judge can consider when deciding if and how much to award. Because the court has so much discretion, it tends to be a difficult thing to predict and can lead reasonable people to disagree greatly on what maintenance will likely look like in any given case.

There are some rules of thumb: very generally maintenance isn’t available in a marriage lasting less than seven years or so and most people expect it to run about half the length of the marriage. The Mac Davis Calculator is also a good tool if you want to drill down into specifics. But even these “rules” have so many exceptions that they provide a rough idea at best.

So how do you handle negotiations when the spectrum of reasonable possibilities runs from, let’s say, $1000 per month for five years to $2000 a month permanently?

One important factor is what the payer has left in disposable income. If she only has $2500 left over after paying bills, she’s never going to agree to a $2000 payment for any length of time because she’s basically working only to pay her ex-husband (not to mention the headache that happens if she loses her job). She might end up having that payment, but it’s going to come via court order, not a voluntary settlement. In that case, it isn’t even worth bringing up a $2000 payment in negotiations–you might as well just go to trial.

The next factor important factor is time: people hate, hate, hate the idea of paying their ex until the day they die, so use that as leverage if a permanent maintenance award is a possibility at trial. Ten or fifteen years of maintenance payments start to look pretty good compared to a lifetime’s worth. As with a maintenance payment that eats up almost all of someone’s disposable income, you might get the permanent award you want after a trial, but you’re going to have a hard time getting someone to agree to it during negotiations.

When you’re entering maintenance negotiations, using the Mac Davis calculator and the rules of thumb will get you in the ballpark. But if you want to seal the deal, you need to make sure that the other person can handle the payments (although it might require a strong chaser!) and leave them a light at the end of the tunnel. If you’re going to insist on big payments on a permanent basis, your time’s better spent preparing for trial than trying to negotiate.