Collaborative negotiation is crucial for child and spousal support agreements in rising gig economy

As the pandemic accelerates the gig economy with more freelancers and independent workers, determining income for child and spousal arrangements through collaborative negotiation or mediation is essential, says Nathalie Boutet, lawyer and mediator at Boutet Family Law and Mediation.

Boutet says support was based on "somewhat" predictable income before the pandemic, and lawyers could determine income in specific industries. However, with the rise of the gig economy, many people work alternative hours, have different requirements and are concerned because they do not earn the same income. For example, she says retail was traditionally stable until recently. “We didn’t know the pandemic was going to shut the doors for a year. The retail industry was upside down.”

Getting gigs can be challenging with the global competition for positions. Boutet says that because more people are working two or three gigs with night and weekend shifts, trying to find "out-of-the-box" solutions in collaborative negotiation or mediation is critical.

Unconventional working hours can be a problem for how much spousal or child support must be paid or received, and Boutet says issues arise when previous court orders or agreements are based on past incomes that are no longer available to people.

“It’s hard because when people separate, they’re not in their best place, so, we’re asking people not in their best place to work cooperatively or collaboratively, but it is in everyone’s best interest to be creative.”

People working in the gig economy cannot confirm their income until they file a tax return. While lawyers can wait until April to access their returns for the following year’s support, Boutet says some people do not want their income accessed yearly and opt for a fixed amount and long-term solutions.

She says establishing an income zone creates a buffer and allows for fluctuations in one’s income without the need to accrue legal negotiation fees for each annual change. For example, a person who earns $40,000 a year on different freelance gigs will not be subject to an annual review if the income stays between $30,000 and $50,000.

The law requires individuals to find income, but Boutet says it is difficult to determine the law in certain situations, such as deciding how many gigs or hours per gig a person should take. So, in collaborative negotiation or mediation, professionals can analyze one family at a time to measure if a person is working sufficiently in the gig economy.

The goal is to have people in a stable position with an amount they must pay or receive, but she says it is challenging for people to plan their lives if their career situation is uncertain and they don’t know when the next gig will be.

Likewise, there may be a right for increased support arrangements in industries like the technology sector that saw an upward trend in the pandemic. Boutet says a child support recipient could ask for an instant review in instances of more income because the law permits the child to benefit from the increase immediately.

Going to court is necessary for certain circumstances, but research shows that non-court processes are better financially and emotionally. She says that people in the gig economy should address child or spousal support disputes through a collaborative or mediation process before starting a court proceeding.