Abstract
The next issue the mediator will generally address is that of support. Before undertaking a discussion of this subject, however, it is perhaps appropriate to address certain threshold questions that the mediator will have to answer. These have to do with the use of budgets in arriving at the appropriate support payment to be made by one of the parties, usually the husband, to the other; the use of support schedules or formulas in determining that amount; and the question of a temporary support agreement between the parties.
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Notes
Suppose, for example, the couple has two infant children. If the available dollars were distributed on a per capita basis, then, if the husband’s after tax income was $20,000 and the wife’s none, he would be allotted $5,000, she would be allotted $5,000, and each of their two children would be allotted $5,000. Since support payments are never made on this basis, then, and again from this standpoint, the husband will be left with more than his wife or either of their two children.
While the question of the disposition of the parties’ marital residence is to a very great extent dependent upon the available dollars, as a general rule it is still best to ignore this fact and to proceed to a discussion of its disposition before the issue of support is taken up. (An obvious exception to this is where it is readily apparent to the mediator that the cost of maintaining the home is not consonant with the dollars that will be available to the parties following their separation.) The reason for this is that the mediator would first like to determine how each of the parties, and particularly the party with whom the children will not be living on a day-to-day basis—usually the husband—feels about their continuing to live in the home, and perhaps to get a commitment from him in this regard before the issue of support is addressed, as this will affect how the mediator will approach that question when it is taken up.
Before intervening, the mediator must first make a determination in his own mind as to whether or not it is realistic for the wife, in this case, to continue to live with the children in the home. In most instances, he should be able to do this quite easily with the information that he already has available to him. If he feels that it will help him to look at the wife’s budget in making this determination, he can, of course, do that also.
This is not to suggest that “ability” is necessarily easier to determine than “need.” (In fact, whether it should be a relevant consideration or not, the husband’s “willingness” to make the payment will often become as important a factor as his “ability.”) It is simply to suggest that, in addressing the problem, adversarial lawyers tend to start with the husband’s ability (income) rather than with the wife’s needs (budget).
Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, (codified at 42 U.S.C. ∫ 667 (1985)).
The reasons for this are set forth in Chapter 18, Support and Maintenance—When, How Much, and How Long?
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Marlow, L., Sauber, S.R. (1990). Support and Maintenance-Preliminary Considerations. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_17
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