My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Thursday, January 24, 2019

Spousal Support/Maintenance/Alimony.

One of the most controversial areas of family law is the issue of whether or not post-separation/divorce an ex-spouse who had been dependent or semi dependent should continue to be financially supported and if so to what extent, for a number of years or indefinitely, to a previous financial standard or close to it or to some other to be determined standard of a lesser nature. These topics are hotly debated by lawyers with each other and in front of Judges. Even in the case of spouses who both work it can arise if there is a big disparity in income. Not too surprisingly, the prospect of having to support an ex indefinitely, and sometimes even for a short period, is one that exercises the mind of the possible supporter to an excessive degree and can colour what might otherwise have been a fairly measured approach to the division of assets. Ex-spouses or partners in this position will wonder if continuing to work to the same exhausting degree as previously, is now worth it? 
Lawyers faced with this issue will often stress the difficulties for women in returning to work after a prolonged absence, loss of confidence in their abilities to navigate the workplace or in the value of their contribution, need to retrain, lack of technological know how etc. On the other side some lawyers will argue that a willingness to at least try and return to work would go a long way. Still others will suggest a retraining period or even a return part time plus some retraining and the remainder will just argue that a return to work is on the cards. 
As a long time, feminist, I tend to feel some sympathy with male resentment. I sometimes think that self-respect should determine a willingness to return to some form of paid employment. Many of the women involved are well-qualified and could at least try. Are these women lazy? Are they used to a particular lifestyle now? Are they unwilling to change?  Surely if you had spent a good deal of time, energy, money and graft in qualifying and climbing up a career ladder – you would want to get back to it asap? 
Before trying to answer these questions, I want to contextualize this debate. Very often in the course of a marriage, couples have divided up tasks in a way that makes financial and practical sense for their home lives. If one party earns more or has more career potential, then it can be practical or make financial sense for the other to downsize their own ambitions and focus their energy on family. The intention can often be that when the kids reach a certain age, the partner who back-seated his or her career at the altar of family life will return to work or College or will, at that time, be afforded an opportunity to focus on his/her own specific career opportunities. In reality, the partner who most often makes this sacrifice is female but that may change going forward. Sometimes, however, that conversation does not actually take place, it is more a silent understanding. Quite often, such understandings are often imagined as shared but are not shared at all and that discovery is only made when the marriage/partnership is in difficulties. This can lead to added layers of disappointment and anger. Even when the conversation is heard and remembered, there may have been life changes which would make such a well-intentioned agreement impossible e.g. marital breakdown, drop in salary, change of work location, sickness etc. If the relationship breaks down it is quite often the case that even if there was a will, there are insufficient funds to run two households and provide extra money for College or to remain at home and very often the parties are facing not only the ruins of their relationship but also the ruins of a lifestyle plan such as a return to College.  Looked at in a different way, it is worth remembering that men are very often enabled to shoot up their career ladder because women are prepared to take a back seat on their own career. It is also true however, that men can often work at unpalatable or dangerous jobs to ensure good pay because they are supporting families. A man’s ability to change careers is curtailed by his responsibilities or to take less paid work which might be more conducive to him. What is important here is that we do not make too many generalizations and that we see everything in its context.
In my experience, most women are prepared to contemplate a return to work but are hugely lacking in confidence that they can earn enough money or that anyone will want to employ them now. There are a few who genuinely have no intention of returning to work or who are ill and cannot contemplate return. Most women, who appear not to want to consider a return, are afraid that they will wind up with insufficient money post separation/divorce. Therefore in negotiations or in court, they present themselves as unwilling, incapable or unable to return to work so as to maximize the spousal financial support they might get. Lawyers are often hostage to their own prejudices in this situation. Their attitudes can be guessed at depending age and gender. Male lawyers will seldom encourage women, in a divorce case, to return to work. This may be a straight forward strategy based on the reality that a female client looking for support will get less if they are working and able to contribute something themselves.  While female lawyers are often caught in this trap too, they are likely to be working mothers themselves and aware of the issues involved and therefore, better able to have a conversation about a return to work. They are more likely to offer direct encouragement. Male lawyers often find it hard to position themselves in such a way with female clients to have such a conversation without coming across as badgering. Unfortunately, the Judiciary is not clear on this matter and while one Judge might take a strong view and raise the issue in court, another will not raise it. 
I take a view that with few exceptions, age or sickness, being most of them, that a separated woman is often better off returning to work as a part of her recovery from the marital breakdown and to give her a sense of financial independence. That said, everyone needs to fully appreciate the logistical difficulties of such a return. Quite often retraining is necessary or a phased return depending on the type of job and ongoing family responsibilities. Equally, a woman who was in a high- powered job or a job with considerable status in her 20s and is now 40 is not going to return at the same level or indeed any level and that may be humiliating for her. Accordingly, she may wish to pursue another career or different kind of work. Sometimes, the experience of being a stay at home Mum may have fundamentally affected her approach to life, values etc. and she may wish to pitch herself differently in the work force.
All of the above difficulties are conundrums that need to be discussed. In short, they are conversation pieces. Nothing will be resolved satisfactorily by either side making the other feel bad about life choices that worked for them as a couple and are now unsustainable.  Equally nothing will be served by either of them being led by well-meaning family, friends or professional people into bitterness. The end result of bitterness in the legal world is money and money will never compensate for lost dreams and hopes even if that were allowed by our system, which it is not. Ireland has a no-fault divorce system. The language of compensation is not appropriate in family law. If a party gave up a career to raise children or took less promotional opportunities because of family commitments, there will be no compensation for such sacrifice in a family court. However, the court will take some account of it when dividing the assets but only to the extent that money is there. All that will happen in family court is a careful balancing of the finances of you as a couple and as you currently stand financially and a division accordingly.

However, a back story, a look forwarded to where the parties might wish to get to in their future separateness can lead to conversations. Conversations can let light in and show ways forward to mutual benefit. Not always, because sometimes there just isn’t enough money no matter which way you spin things, but the conversation can break down bitterness and barriers which in turn leads to better parenting or communication. It is not much of a conversation when a person is being cross-examined in court or where negotiation is being conducted with each party closeted in their own area so that the people actually talking are the representatives and not the parties. Mediation, collaboration in all their myriad forms are the way forward in all family law dilemmas.   

No comments:

Post a Comment