Negotiating Alimony With Your Spouse

You end up in front of a judge arguing about alimony only if you and your spouse can't reach an agreement, and you should give the negotiation your best shot—it will be a lot less expensive than going to court, and will provide you with certainty instead of leaving decisions about your future to someone else. Before you start negotiating with your spouse about support, look carefully at the factors judges consider. They may help you in your negotiations—and if you can't agree, at least you'll know what the judge may take into account.

Your mediator or lawyer can help you plan for the negotiation. If you're using mediation or collaborative law to resolve your divorce case, you can work with the professionals to figure out how much support is appropriate. If you're in a contested divorce, your lawyer will help you come up with an amount to ask for based on what the judge is likely to consider.

Evaluating Your Spouse's Resources

Whether you're the one who'll be receiving or paying support, you need information to negotiate effectively. Otherwise, you can't feel comfortable that the support you agree to is adequate for your needs—or consistent with your ability to pay.

Almost all states require both spouses to make some financial disclosures as part of the divorce proceeding. This is true even if it's clear which spouse will pay support—the recipient spouse's resources are important to determining need, and the paying spouse's to determining ability to pay. If you have been responsible during the marriage for all of the financial ins and outs, you're certain that there's nothing you don't know about your spouse's financial situation, or you trust your spouse's word 100%, you won't need to ask for more information.

Otherwise, make sure the following things are included in the forms that you're both required to fill out. And if they're not, use discovery methods to get the additional information you need. You'll need to know about:

• Your spouse's separate assets. If your spouse has separate assets, you're entitled to know their value. (Depending on where you live, the judge may consider them if called upon to decide a support amount.)
• Income and expense information. You definitely want a detailed monthly income and expense report—which should be one of the forms your spouse is required to give you—to show you where your spouse's money is going. If the expense report shows $500 being spent every month on dining out, and all you can afford are microwave dinners while watching "American Idol," you'll surely want to point this out. At the other end of the spectrum, if your spouse is seeking a large amount of support while you know that separate liquid assets are available for daily expenses, get the information that will prove it.
• Bonuses, overtime, and benefits. Don't forget income from things like bonuses and overtime, even though they're not completely predictable. If your spouse has regularly received a bonus or lots of overtime pay, you can average the amount received in the last few years and use that figure. Likewise, pay attention to things like stock options and the value of work-related benefits such as unused vacation pay and sick pay, company-paid vehicles, and health insurance benefits. All of these items have a measurable value that should be factored into a spousal support negotiation. You may need to ask for your spouse's employee manual or other work-related benefits information to find out what the company's policies are on accruing sick and vacation time, so that you know what's there and what it's worth.

Evaluating Your Needs

Given that you'll be required to prepare a monthly income and expense disclosure anyway, use it to determine how much support you need. Look at the difference between your expenses and your income, and then factor in whatever resources you have and look at the list of factors above. Because there's usually no standard formula, all you can do is decide what you think you need and ask for it. That will get the negotiations started.

And remember, nothing's getting cheaper. If you're the person getting support, once you've settled on an amount you may want to include a provision for increasing the amount each year—a cost of living adjustment (often shortened to COLA). You can tie the increases to the national or a local COLA index (available online), or assume an annual increase of a specific percentage.

Adapted from Nolo's Essential Guide to Divorce, by Emily Doskow.