Donald and Melany live in Massachusetts. They are age 48 and 47. They have three children agres 18, 14, 12. They have decided to divorce.
The main area of concern is their retirement accounts. Donald has an IRA in the amount of $200K and a 401k in the amount of $350K. Melany has stayed home with the children and has a small 401k from before they had kids at $50K. How might this issue be handled at mediation?
Our process would be to first have the clients identify the accounts, the amount in the account at the date of marriage and present value.
Next we would give the clients 2 looks as to how they may want to view it:
1. Look 1: Discuss how MA courts and lawyers look at the division using an equitable division method and the statute's many factors. This discussion usually leaves the clients without much help.
2. Look 2: We then look behind the curtain and ask them about the marriage philosophy regarding their respective contributions and duties toward the marriage, kids and each other? For example, did each person work as hard as they could or as agreed with their responsibilities whether it be earning the income, taking care of the kids, the home, etc. Their answer will lead to having a fair discussion of what might happen to the accounts looking past, present and future.
3. If the parties are not at a 50/50 division, we do ask them to give their best reason why it should not be. We also might ask them to make the argument if they were the other person to see it from a different point of view.
4. We do cover the situation where a person brought into the marriage a retirement account. If so will that be carved off the total retirements before a division? That discussion will look at how much is in the account, how long the marriage is and to what extent this amount should "merge" into the total marital assets?
5. Finally, there will be a discussion how mechanically the accounts get divided, if a Qualified Domestic Relations Order (QDRO) will be needed to avoid taxation on the division and how an employer will set up a new account as requested.
6. We suggest that the couple stays within their asset class when dividing assets as trading off a retirment asset which has yet to be taxed should not be traded for a bank account, for example, that contains after tax money without knowing the consequence of this "uneven" tradeoff.
This is an example of how the 50-100 decisions of divorce are handled in a mediation setting. If this seems better to you than battling in court call us for a free intital couples meeting.
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