A Family Mediation: Spousal Support and Pension Issues
A couple (lets call them Sally and Harry) were divorced in 1998. Both are in their late 60’s. They had been married for 26 years, and divorced for 21 years. They had two children during their marriage–neither of which are dependent adults. Sally was unable to gain employment after the divorce due to disabilities. Their divorce agreement identified no end date or review criteria for spousal support. Harry paid spousal support to Sally from the date of the divorce agreement up until the date Harry retired. Upon retirement Harry decided, without any court order or agreement between Sally and Harry, to cease payment of spousal support, and pay only the pension partner amount to Sally. Spousal support became in arrears for 4 years, amounting to close to $80,000.
Though both parties had retained their own legal counsel, neither wished to proceed to court. Instead, the parties agreed with each other to contract JRB Mediations to help them resolve their dispute/issues.
Pre-Mediation Meetings: JRB Mediations conducted pre-mediation meetings with both parties, separately, to explain the mediation process, identify the issues they wished to discuss at mediation, their interests, what they wanted to bring to the table to negotiate a resolution, and assess whether or not mediation was appropriate for either Sally or Harry. During these discussions, the parties were also informed that, should they both agree to continue to mediation, each were to bring a copy of their monthly budget (what they typically spend in a month), list of incomes along with supporting documentation, and other information they may deem relevant to help explain their perspective to the other party. Duration of pre-mediation session per party: 1.5 hours each.
What the parties wanted from Mediation: Both parties’ expectation of mediation was for a reasonable and fair outcome, mutually agreeable to both of them, as it pertained to a value of spousal support and pension.
Initial Positions of the Parties:
Position of Harry: Harry felt that less or no spousal support should be paid since he was already paying Sally’s pension partner share of the employment pension. Otherwise, to keep paying spousal support in addition to the pension portion, Harry felt felt that doing so 1) equates with paying over twice as much now than in the past 20 years of divorce, 2) A greater amount from the pension would be paid out than should be towards the pension partner amount and spousal support, and 3) Harry could not afford to do that.
Position of Sally: Sally felt that she is entitled to half of the employment pension and in addition would like at least half of Spousal Support to continue to be paid.
Issues raised by the Parties: Spousal support ( values: varied or continue as is, and arrears), pension (calculation commencement date, communication, named beneficiaries), payment methods, costs.
Common Interests of the Parties: Affordability, fairness, life-style & self-care (haircuts, clothes, entertainment, etc.), financial security.
Preparation for Mediation: JRB Mediations researched and reviewed relevant sections of various Acts and Regulations (Matrimonial Property Act, Employment Pension Act and Regulations, Family Law Act), and reviewed the Parties’ divorce minutes, notes from pre-mediation sessions, and other documentation, and prepared a mediation process/strategy.
Mediation: used interest based mediation style, the use of budgets and income summaries to help put into perspective the income and expenses of each party to assist them with moving forward towards a negotiated resolution, and used attending counsels’ legal knowledge when necessary.
Duration of the mediation: 4 hours
Challenges of the mediation:
- Both Sally’s and Harry’s hearing deficits created a listening challenge for the parties and a reminder to increase vocal capacity for all involved.
- Sally’s lack of education required the mediator to ensure she understood what was being said by Harry and legal Counsels, to ensure fairness and equability in the process.
- Keeping the parties on track as to why they were at mediation.
Resolution: Had the parties decided to go to court, the outcome of their dispute would have been determined by a third party—the Judge. In addition to the high costs of going to court and its adversarial nature, the amount of spousal support the judge could decide Harry would have to pay Sally (arrears owing and amount going forward) could have been anywhere from 0% to 100%–so $0.00 to $80,000.
Instead of going to court, the parties decided to hire JRB Mediations and determine their own outcomes. During Mediation the parties mutually agreed to the following resolutions:
- Harry and Sally agreed that Harry would continue to pay the current rate of the Pension Partner share ($1700) to Sally.
- The spousal support Harry would continue to pay Sally would decrease from $1500 to $450.
- The parties agreed that the pension partner share would be called spousal support and that a single monthly payment of $2150 would be paid by Harry to Sally in the form of Direct Deposit. This was to be deposited on the first day of each month beginning the month following the mediation.
- The parties also agreed that the beneficiaries for the pension would be split equally into thirds (Sally, and child 1, and child 2) and that should Harry become deceased before Sally, the spousal support would revert back to the pension partner amount of $1700.
- Both parties agreed to have amicable communications with each other moving forward.
- To help Sally decrease some of her higher expenses, Harry agreed to meet with Sally in the next month to obtain car insurance quotes. This was to help Sally obtain equivalent insurance to what she has currently, but at a much cheaper rate than what was currently paid.