Divorce Mediation & Division of Property
- Why should a spouse who has worked all of his/her life share a pension with a spouse who has not been working?
- How do spouses who have cared for children at home plan for and support themselves in retirement?
- What options does mediation offer the couple with regard to dividing the marital home?
- How creative can couples be in dividing the assets of their marriage?
Q: Why should a spouse who has worked all of his/her life share a pension with a spouse who has not been working?
The probate court in Massachusetts has come to recognize marriage as a partnership. Based on this partnership theory of marriage, the contributions of a spouse who has remained at home and been the caretaker for the children are seen as equal to the financial contribution made by the spouse who works outside of the home. The spouse who has remained at home has enabled and assisted the other spouse to remain employed and earn income to contribute to a pension plan. During their marriage, both partners counted on this plan for their retirement.
Q: How do spouses who have cared for children at home plan for and support themselves in retirement?
A spouse who has been married over ten years is entitled to receive 50% of the ex-spouse’s Social Security benefits, or their own benefit, whichever is greater. At the ex-spouse’s death, the former spouse is entitled to 100% and may begin collecting at age 60. An ex-spouse’s remarriage would terminate the entitlement to collect based on the ex-spouse’s benefit, unless he has died and the spouse remarries after age 60.
In addition, a spouse who has not worked is entitled to equal shares of any pensions that were earned during the marriage. If, after child support ends, a spouse is not able to return to work, the issue of alimony may arise.
Q: What options does mediation offer the couple with regard to dividing the marital home?
Couples do not have to sell their home at the time of divorce. Through the mediation process they may decide to continue to own the house jointly for a period of time, or one may decide to buy out the other’s share in the home, or they may choose together to sell the house. Joint ownership for a period of time may serve to allow the children to reach a certain age in a stable environment, and may provide the opportunity for their joint asset to grow in value, or for one party to gather the resources to buy the house.
Q: How creative can couples be in dividing the assets of their marriage?
Couples CAN BE creative in mediation in terms of dividing assets. However, the agreement must be “fair and reasonable”, taking into account each couple’s specific situation. Some of the factors that a court must consider when making a division include ages, future employment potentials, abilities to acquire income and assets in the future and educational backgrounds. Through mediation, the couple consider many of the same factors in coming to an equitable and fair agreement.