When divorcing couples experience ongoing conflict how to best agree on the amount of temporary support payments for reasonable and recurring living expenses, it’s a best practice to define the terms and conditions of the temporary support in a document we call an Affirmation of Temporary Support. This solidifies the thinking process and reduces the likelihood of temporary support modifications during your divorce.
Creating an Affirmation of Temporary Support is a critical, yet all too often missed, step in a divorce process. It substantiates the financial rationale around the need for temporary support balanced by the capacity to pay such support where the definition of capacity to pay can be subject to definition based on the surrounding circumstances.
Without a mutual understanding, reasonably defined and agreed upon in writing, both parties often find themselves:
Under an even more heightened level of tension
Retaliating due to the perception of the support being misaligned to the need for support and/or capacity to provide support
Having new memories created which results in unwanted aggravation during and after the divorce
In a rut, not making any meaningful movement in the process, to address and resolve other important aspects of the divorce
Yet, once authorized, the Affirmation of Temporary Support often enables each party to:
Reference a set of agreed-upon, compliance conditions how temporary support is paid
Shift away from unproductive communications around temporary support
Focus on other issues that need to be addressed
Diligently move the process towards closure
Many divorcing spouses who have access to money often have little to no desire to provide support to the other party. Many times these thinking processes are not intentionally malicious. Rather, these actions may be unconscious for self survival or based on upbringing or concerns around future uncertainties for oneself or otherwise. Yet, when intent is conscious and willful, representing the basis of withholding temporary support, new problems enter the equation. Having a desire to not provide support is a mindset that certain people may support in certain contexts (e.g. prior experience of domestic violence from the non-monied spouse). Yet, when a divorcing spouse cuts off or limits their soon to be ex-spouse from monies to live her or his life, it is not looked highly by third party decision makers. It is deemed categorically unacceptable and a highly immoral behavior to control another person’s financial life in this manner during a divorce process. A third party decision maker can deem such behavior, especially when not immediately cured, as the monied spouse is:
Simply unaware of the circumstances (i.e. financially negligent), although uninformed innocence is a difficult claim to make
Imposing financial control over the non-controlling money spouse
Inducing financial retaliation or abuse onto the non-controlling money spouse
Engaging in financial extortion against the non-controlling money spouse
Each classification may be punishable to different degrees by a court of law. In these situations, perceptions coupled with relevant evidence matters in the eye of an outsourced decision maker.
The surrounding conditions of the situation often define the classification of such misappropriation or misallocation of funds during a divorce a process. If a third party decision maker determines such classification is warranted, the third party decision maker may decide to reallocate other assets as justified compensation in the final settlement structure, along with other means to satisfy such indiscretions that persisted over time. The challenge arises when the misaligned payment occurs over a period of time and the amounts begin to grow. This is when much anguish arises when it comes time to finalize your settlement structure.
A monied spouse can create unforeseen problems for herself or himself which will need to be addressed during the settlement design process where:
The standard of living between the spouses is not reasonably aligned during the divorce process or
One of the spouses continues to control and prioritize monies towards her or his benefit (for personal or business matters) over the financial well-being of the children or soon to be ex-spouse
For this reason and others it is best to define the rationale and conditions for Temporary Support in an Affirmation of Temporary Support. This reduces the concerns that may arise later in a divorce process.
For your information, traditionally, temporary spousal support (a.k.a. temporary orders) is issued through a court order where neither of you would have a say in the matter as to how the temporary spousal support is defined. You would each likely question and have no control over the underlying rationale, duration and related conditions surrounding such order from the court. To arrive at a court order is usually a motion to the court for support from an attorney or a pro se litigant (i.e. a self representing party). It often requires significant disclosures and an attestation by each party that such disclosures are 100% truthful and respectably accurate to the best of each party’s knowledge. If either party has intentionally misrepresented information or was not fully transparent in her or his disclosures, the party who intentionally or potentially unintentionally dissuaded the third party decision maker of the court could be subject to unwanted legal exposure or otherwise.
A court order for temporary orders is legally enforceable, formally imposed on each party, may become a searchable public record and subjects the provider of support to being at risk of falling in contempt of the court due to non-compliance with the order which can be coupled with other undesirable legal ramifications and unwanted exposure. Although it is often best to do so, a court order of temporary spousal support often does not require either spouse to: (a) periodically report out to each other nor validate the ongoing: (b) capacity to pay support, (c) need to receive support, (d) standard of living enjoyed by one or both spouses due to changes in surrounding conditions or otherwise, (d) business dealings, among other aspects that arise in a divorce process. Using a court order to enforce temporary orders often inflames one or both parties as financial situations change during a divorce process. A court order also often introduces ill will in the form of a permanent memory into each party’s life how matters were handled during the divorce where one or both parties replay these thoughts many times over throughout their lives. This mental replaying process drives a desire for future modifications to the divorce settlement where the divorce process may not end as anticipated.
Barring any emergencies, temporary orders are often established as a fixed amount throughout a divorce proceeding. Even if a person no longer has the means to make such payments or the need has changed over time, the provider of such payments continues to be obligated to make such payments. Furthermore, the receiver of such payments must accept such payments even if the receiver’s need has increased precipitously or the original definition of the financial need was inaccurate at the time of the court order. One party might unintentionally benefit from changes that are not recognized by the court as a reason to modify the temporary spousal support. This often results in an unfair situation legally enforced upon the other party. Once temporary orders are established via a court order, they can be challenging to modify and are often coupled with undesirable legal interactions.
The Affirmation of Temporary Support is a process designed to place each of you more in control over the definition and management of temporary spousal support. If it is determined there was a misstatement or material change that arose in either of your financial lives throughout the divorce process that resulted in an under or over statement of temporary support, it is best to reconcile such differences to recoup the lost monies from the other party during the design of the settlement structure, if not resolved earlier in your divorce process.
If you need help to properly define the Temporary Spousal Support including all of the conditions that often surround such Temporary Spousal Support give us a call. The call is free. We will provide you a free 30-60 minute discussion to see if we can help you. You will have no obligation whatsoever to work with us. You can take the information along your journey. My email address and phone number are: [email protected] and 617-680-5222. If you want to email me, just send a subject line of Questions about Temporary Spousal Support. If you want to call out of the blue, feel free to just call as well. Over the years we have received many random calls to help people and are happy we can do that as well.
For your information, I am not an attorney. I am a CPA and MBA who since 2003 has solely specializes in resolving the complexities of divorce, financial and otherwise. During 2003, I recognized the processes and frameworks used by other professionals were inadequate. Surprisingly so, there was no standard of excellence applied in this industry. This set us out on a mission to build frameworks that allow people to arrive at what we call “this make sense to me” so each party can sign on the dotted line. Divorce does not have to go through the challenges and paces people often go through. We created frameworks to help people manage their settlement structures and future financial lives as well as everything in between. Everyone should be able to have a functional family when they are done with their divorce.
During a divorce process, we do not only focus on the numbers, although 95-98% of a divorce is often financial related. We focus on all aspects of a divorce. We have worked with numerous people (both sole representations and dual representations, depending on the situation) across the country since 2003. The ideal situation is a dual representation as it reduces the transparency concerns, among other challenges that arise in divorce.
There are about 63 risks known risks we have identified over time that exist in a divorce process which can significantly impact someone’s future financial life regardless of the complexity of someone’s financial profile. Since we uniquely built a modern process architecture to manage the aspects in divorce, we dynamically manage all of these risks to help our clients manage their outcomes, financial and otherwise.
I am an expert at navigating interpersonal conflict, designing financial architectures that work for your future financial lives, working through complex negotiations along with numerous other areas of expertise that we practice in divorce that need the diligence and attention to detail to arrive at a respectable and pragmatic solution. If you need help, give us a call. We have the deep expertise, well defined processes (via a process architecture we created for this space) and integrated financial frameworks.