What's the difference between a mediator and an arbitrator?

A mediator helps the two of you identify the issues that need to be resolved and then helps you make your decisions.  A mediator might offer creative alternatives to help you decide, but he or she does not make any decisions for you.

An arbitrator, on the other hand, does make decisions for you.  Each of you would discuss your issues, and then the arbitrator would present what he or she feels is the best solution.  Usually, the parties agree ahead of time that they will be bound to the decisions of the arbitrator.

I do offer both mediation and arbitration.  But, divorces are always done through mediation.  Arbitration is usually used to resolve only a single issue.

How do I choose a mediator?

1. You have to feel comfortable with your mediator. Do you sense that he/she conveys the proper principles to you?
2. The mediator should be accredited by the NJAPM (NJ Association of Professional Mediators). Ask.
3. Experience is vital. Ask how many years he/she has been mediating.
4. If you believe that your case involves an unusual circumstance, mention it and see if you feel comfortable with the response. Don't expect solutions to be offered during the interview, but listen for the approach that the mediator would take.
5. Make sure the mediator who you are interviewing is the mediator who will be handling your case. Some larger offices will assign you to another mediator who might or might not be accredited by the NJAPM.

For Art Lieberman's qualifications, click here, then give him a call at (908) 654-4404. Or, if you would like to ask a specific question via the Internet, click here.

In what kind of cases will mediation NOT work?

• If one of you is unwilling to present all asset documentation, or is hiding any assets.
• If one of you has a goal of financially harming the other person.
• If one of you is unable to state what you need and negotiate while your spouse is sitting next to you. Sometimes, physically or emotionally abused people are best supported with an attorney.
• If one of you simply cannot make decisions or is unwilling to take responsibility for your decisions.

In fact, mediation is quite effective in situations where you might think otherwise. For example, if there is a lot of unrestrained anger, mediation is a much better alternative to using attorneys to litigate. Litigation tends to increase the anger, the threats, the attacks, while mediation tends to suppress them.

If a couple is already in a heated battle through their attorneys, totally switching over to mediation - midstream - is very effective in putting a halt to the aggression and helping the couple work together to resolve the issues more peacefully and more quickly.

The negotiation skills of each of you do not have to be equal. It is the mediator's responsibility to balance the negotiating and to protect each of you from being overpowered by the other.

How many mediation sessions will it take? What's the cost?

The pace is set by you.  I do not have a preset number of sessions.  It depends upon (1) the complexity of your situation, (2) how prepared each of you is for making decisions, (3) how well you communicate with one another.

For example, certainly there are more decisions to be made if you own a home rather than rent one.  And, if young children are involved, the time is almost doubled.   There are many decisions to be made concerning your children.  Almost all of the decisions are easy to make, but there are lots of them, and they take time.

Each session lasts 1½ to 2 hours and we usually meet once per week. But, again, you set the pace.  If either of you is feeling that you need to stop after one hour, that is fine.  And, if we are on a topic and progressing well, you might want to continue longer to finish it uninterrupted.

Most of my cases that involved children have used between 3 and 5sessions. The majority of my clients who have children spend between $2000 and $3500 on divorce mediation.

Once there is an agreement, does the mediator handle the legal papers for the divorce?

The mediator prepares a very detailed document containing all of the agreements that the two of you make.  This document is called a Memorandum of Understanding.  It is usually 10 to 15 pages. You would give this document to your attorney, and your attorney would prepare the necessary paper work to file your case with the courts.  The time spent in coming to your agreements and the preparation of this document - done in mediation instead of through your attorneys - is where you are avoiding high attorney fees.

In New Jersey, one person cannot act as both your mediator and as your attorney. If you were to choose an attorney to handle your mediation, you would have to find another attorney to file your papers.

What is a Memorandum of Understanding?

At the completion of the mediation, the mediator will prepare a document that details his/her understanding of what the two of you agreed upon.  This is called a Memorandum of Understanding.  It is not a contract, even though it might look like one.  By state law, a mediator cannot write a contract for you.  So, you would give the Memorandum of Understanding to your attorney, who would turn the Memorandum into a contract as part of your divorce filing.

Do we have to use attorneys?

The short, technical answer is No.  BUT, I strongly encourage you to use attorneys in addition to your mediator... for any legal questions that you might have, to review the terms of your agreement, to file your case with the courts, and to accompany you when you appear in court.  Some decisions in a divorce can be quite difficult, and it is best to have a few sources of opinion.  Getting divorced is one of your few major life actions.  You want to be sure that all of the legalities are proper.

Both of you cannot share an attorney.  An attorney is not allowed to represent both sides of a case. Also, in New Jersey, one person cannot act as both your mediator and as your attorney. If you were to choose an attorney to handle your mediation, you would have to find another attorney to file your papers.

I ask my clients to select an attorney about halfway through the mediation process.  Normally, you do not need an attorney when you begin mediation, but you don't want to wait until the last mediation session to select an attorney.  Your attorney is part of your support team, for answering legal questions and for confirming anything that you question.

At our first mediation session, we will discuss how to select an attorney.  Most importantly,  you must ask your attorney if he/she is supportive of mediation.

Please note:  If you suspect your spouse is hiding or disposing of assets, or if abuse is involved, you should seek the help of an attorney immediately, regardless of whether you will be using a mediator.

If we use a mediator and attorneys, won't it cost twice as much?

Using the combination of attorneys and a mediator actually should be cheaper than using attorneys alone.  If you were not mediating, the bulk of the attorney fees (probably 90%) would be from trying to resolve the issues between you and your spouse and making all of the decisions.  But, that is the part that will be accomplished in mediation.  So, you'd be paying your one mediator for that part instead of your two attorneys.  And, the mediator will be less expensive because your negotiations will be much more efficient, using much less mediator time than you would have used attorney time - because the two of you are discussing the issues face-to-face.

Most of my clients spend between $1000 and $2000 on mediation.  I have surveyed attorneys, who have told me that the fee to handle a non-mediated case would cost at least $5000 - for each of the attorneys.

How do I select an attorney?

Each of you will be hiring an attorney, in addition to your mediator. But your attorney's role is limited to providing legal advice, reviewing your agreement, preparing legal documents, and appearing with you at your hearing. Negotiations, though, are done with your mediator.

So, you'll have to interview attorneys to find one who you are comfortable with. You can interview attorneys in a telephone call. Some attorneys offer a free 1/2-hour consultation. Usually, you do not need to have your attorney in place before you begin mediation (unless immediate action is required in order to protect yourself physically or your assets from being drained away). You don't want to wait until the end of the process, either. I ask my clients to have their attorneys retained no later than halfway through the mediation process.

Here are some questions you can ask an attorney in a telephone interview:

1. How many divorces have you handled in the last year? [You must hire a matrimonial attorney!]
2. How do you feel about mediation? [Any negativity probably means you should call someone else.]
3. If we are using a mediator, what would your retainer fee be? [Should be between $1500 and $2500.]
4. What is your hourly rate? [Will probably be between $175 and $275.]
5. How do you charge for telephone calls? [Usually in 10- or 15-minute increments.]

Do we have to appear in court?

The person who files for the divorce must appear in court.  The spouse is not required to appear, personally - he or she can be represented by his or her attorney.   However, I strongly recommend that both of you, and both of your attorneys, appear in court, just in case there are any technicalities that arise that would need an immediate answer. If you are not there to answer the question, your hearing could be postponed.

If we've already made our decisions, how can a mediator help us?

The mediator would review your decisions with you, for two purposes:

1. Have you thought of everything?  (For example, have you included a statement about survivorship rights in pension plans?)
2. Are there some alternatives to your decisions that you have not thought of?
3. Are your decisions equitable?  (For example, an inheritance is not a marital asset, and you have the option of sharing it.)

Because you have written up everything yourself, your mediator would not need to write a Memorandum of Understanding.  Instead, you could just edit your own document, based on the mediator's comments.

How much child support will I have to pay?

In mediation, the question is not "How much will I have to pay?"  A more appropriate question is, "How much is needed from me to help support our children?"

In mediation, I guide you through a process that helps the two of you derive an amount that both of you feel is appropriate and fair.

NJ Child Support Guidelines Worksheets:  You (or your mediator or your attorney) are required to fill out these forms.  They involve a lot of calculations and tax tables, and the bottom line is a child support amount.  If the two of you do not agree on an amount and a judge were required to make the decision, the bottom line of the Worksheet would be used for the child support amount.  The Worksheets take a very impersonal approach that considers the "average" family.  But, your family is not average, and a more meaningful number can be arrived at by the two of you.  In mediation, we use the Worksheets only as a guideline - an approximation of what the child support amount should be.  

The rules behind the use of the NJ Child Support Guidelines are so complicated, that it requires a computer program to help you fill them out.  One of these programs is named DivorcewareNJ, which was developed by me. You can use this program for free, online.

Just in case you're interested, here are some boring details about how the NJ Child Support Guidelines work.  But, this is not necessarily how you will be determining your child support amount.

The guidelines require that one of the parents be labeled as the "Parent of Primary Residence" (PPR).  The other parent is called the "Parent of Alternate Residence" (PAR).  (Also, there is another pair of titles that might be assigned, depending on how many nights the kids spend with each parent.)

The guidelines contain an estimate of how much it costs to raise kids in a family having joint incomes similar to yours.  The costs, then, are distributed between the parents based on (1) how much after-tax income each of you has, (2) how many overnights the kids spend with each of you, and (3) what the costs are for.

The guidelines base the costs of raising a child in 3 parts:

Fixed Costs are those incurred even when the child is not residing with the parent.  Housing-related expenses (e.g., dwelling, utilities, household furnishings and household care items) are considered fixed costs.  Variable Costs are incurred only when the child is with the parent (i.e., they follow the child).  This category includes transportation and food.  Controlled Costs include clothing, personal care, entertainment, and miscellaneous expenses.

The responsibility for Fixed Costs and Variable Costs is divided between the parents by how much time the children spend with each of them.  The guidelines assume that the PPR, as the primary caretaker of the child, has direct control over Controlled Costs.  So, even if the two parents have equal incomes and equal overnights, the PPR will receive support from the other parent - according to the guidelines.

How much spousal support (alimony) will I have to pay?

In New Jersey, spousal support is not something that can be "calculated."  There is no worksheet similar to the Child Support Guidelines.

And, every divorce does not involve spousal support.  First, there has to be a need for support, and, second, there has to be a request for support.  Some people who need help just don't want any help - they want to make it on their own.

And, if spousal support is provided, it might not be paid forever.  There are many kinds of support.  A person might need support for only a few years, until he/she can bring his/her income level up.  A person might need support to go to college, in order to learn a new skill.  Or, a person may need support for the long term.  In mediation, the two of you can agree on any form of payment that makes sense to you.

The amount of spousal support depends upon the length of the marriage, the income that each of you has, your style of living, your needs.  But, there is no equation that says "If you've been married for 10 years, you get $1000, and if you've been married for 12 years, you get $1125."  Some lawyers use estimates to arrive at a ballpark number, such as a certain percentage of the ex-spouse's income.  But, 10 lawyers and 10 judges would specify 20 different amounts for spousal support.

In divorce mediation, I help my clients arrive at an amount of support that each of them feel is proper.  I explain why support may be needed, and why it should feel ok to pay it.  Through open discussion, we arrive at a support figure that works.

Keep reading, below...

How much spousal support (alimony) should I ask for?

In New Jersey, there is not a single way of computing spousal support.  There is no worksheet similar to the Child Support Guidelines.  And, every divorce does not involve spousal support.  First, you must show a need or reason for support, and, second, you must request the support.  Some people who need help just don't want any help - they want to make it on their own.

And, if spousal support is provided, it might not be paid forever.  There are many kinds of support.  You might need support for only a few years, until you can bring your income level up.  You might need support to go to college, in order to learn a new skill.  Or, you may need support for the long term.  In mediation, the two of you can agree on any form of payment that makes sense to you.  Below are the traditional forms of spousal support.  You might choose one of these, or a combination of these, or some other creative arrangement.

1. Permanent: Terminates upon the remarriage of the dependent spouse, or the death of the payer spouse.
2. Rehabilitative:  a. “Payable for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self-support.” b. Should specify “the scope of rehabilitation, the steps to be taken, and the time frame.” c. Can co-exist with permanent alimony. Also, permanent alimony can be requested after the rehabilitative period. d. Does not terminate upon the remarriage of the dependent spouse, unless “the Court finds that the circumstances upon which the award was based have not occurred or unless the payer spouse demonstrates an agreement or good cause to the contrary.” Terminates upon the death of the payer spouse.
3. Reimbursement:  a. To compensate a supporting spouse who has suffered a loss or reduction of support, or has incurred a lower standard of living in the future. Or, where “one party supported the other through advanced education, anticipating participation in the fruits of the earning capacity generated by the education.” b. Applies where the supporting spouse made monetary contributions “with the mutual and shared expectation that both parties to the marriage will derive increased income and material benefits.” c. Covers only the supporting spouse’s financial contributions: household expenses, educational costs, school travel expenses, ... d. Does not terminate upon the remarriage of the dependent spouse, unless “the Court finds that the circumstances upon which the award was based have not occurred or unless the payer spouse demonstrates an agreement or good cause to the contrary.” Terminates upon the death of the payer spouse. e. The Court cannot order reimbursement alimony, but the parties can agree to it in an out-of-court settlement.
4. Term (Limited Duration) a. It is for a specific period of years which does not necessarily relate to the factors relevant to permanent and rehabilitative alimony. b. The length of the term is “the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.” c. The amount may be modified upon changed circumstances or a nonoccurrence of circumstances. The length of the term may only be modified in unusual circumstances. d. Terminates upon the remarriage of the dependent spouse, or the death of the payer spouse. e. The Court cannot order term alimony, but the parties can agree to it in an out-of-court settlement.

The amount of spousal support depends upon several things, including the length of the marriage, the income that each of you has, your style of living, your needs.  But, there is no equation that says "If you've been married for 10 years, you get $1000, and if you've been married for 12 years, you get $1125."

Factors to be considered by the Court in measuring spousal support obligations [NJSA 2A:34-23(b)]:

1. The actual need and ability of the parties to pay.
2. The duration of the marriage.
3. The age, physical and emotional health of the parties.
4. The standard of living established during the marriage.
5. The earning capacities, educational levels, vocational skills, and employability of the parties.
6. The length of absence from the job market of the party seeking maintenance.
7. The parental responsibilities for the children.
8. The time and expense necessary to acquire sufficient education or training.
9. The history of financial and non-financial contributions to the marriage by each party.
10. The equitable distribution of property ordered and payouts on equitable distribution out of current income.
11. Any other factors which the court may deem relevant.

In divorce mediation, I help my clients arrive at an amount of support that each of them feels is proper.  I explain why support may be needed, and why it should feel OK to pay it.  Through open discussion, we arrive at a support figure that works.

Examples of support proposals:

1. I am 50 years old, I have small kids at home I have to take care of, the last time I worked was 20 years ago, and I'll never have a good paying job.  My budget shows that I need around $52,000 a year, and I can pick up around $10,000 a year from part-time work.  After taxes, the $10,000 will be only around $7,000.  So, I really need around $45,000 of financial help from you.  Because I have to pay taxes on spousal support, I'd have to receive approximately $64,000 from you so that I end up with $45,000 after taxes.  Of course, you get to deduct the $64,000 from your taxable income.  So, my proposal is for $64,000 per year plus an annual cost-of-living adjustment, as permanent alimony.
2. If you put me through school, now, then you won't have to pay me as much support later, because I'll be able to get a much higher-paying job.  So, I'm proposing that you pay the costs for a 2-year technical degree plus $42,000 per year for those two years to cover my living expenses.  For year 3, I would be responsible for securing a job paying at least $20,000, so your support figure would drop to $22,000 - regardless of how much I earn during that year.  For years 4 through 6, the amount of support that you pay would go down as my income goes up.  You would support me with 75% of the difference between $42,000 and the amount that I earn, but never more than $22,000.  After year 6, support would end. 
3. I acknowledge that you are earning a lot and I earn very little.  But, I don't want to be dependent on you.  Yet, I cannot afford to do it entirely alone.  So, I'm proposing that you support me with $15,000 per year plus the cost of health insurance, for 5 years.

Are child support and spousal support tax-deductible?

Child support is not tax-deductible.  You would be supporting your child whether you were divorced or not. When filling out tax forms, the payer does not deduct it from income, and the receiver does not add it to income.

With spousal support, you have an option. The payer can take the amount as a tax deduction, in which case the receiver must report it as taxable income. ...OR... The payer can choose to not take the tax deduction, in which case the receiver does not report it as income. The two of you need to agree, in writing, on which of these alternatives will be used.

What should we bring to our first mediation session?

1. Basic information: [A form is available on this web site.]
   • Full (and maiden) names of all family members.
   • Addresses, telephone numbers, e-mail addresses.
   • Marriage date, and birthdays of all family members.
   • Social security numbers.
   • Education, occupation, employer, income, benefits.
   • A photo of your family
2. Assets & Liabilities: [A form is available on this web site.]
   • House: Approximate current market value.  An appraisal is not needed at the first meeting.
   • Mortgage: Mortgage company, account number, balance, date of balance.
   • Bank accounts: Bank name, account name, account number, balance, date of balance.
   • Investments: (details)
   • Retirement and pension plans: (details)
   • Non-term life insurance: Company, policy number, beneficiary, current cash surrender value.
   • Loans: (details).
   • Credit cards: Bank, account name, account number, balance, date of balance (for every credit card, including those with a zero balance).
3. Documentation:
   • Federal tax returns and W2's for last 3 years.

Do we have to state a reason or cause for the divorce? Wait 18 months?

The 18-month waiting period of living separately used to be called the "no-fault" divorce in New Jersey. However, in 2007, a 9th "cause" was added: Irreconcilable Differences, which requires no waiting period and no explanation. You should consult with your attorneys in deciding which "cause" to use. Read on...

New Jersey Statute 2A:34-2 Causes for divorce from bond of matrimony:
Amended by L.1971, c. 212, s. 2; L.1971, c. 217, s. 11, eff. Sept. 13, 1971.

Divorce from the bond of matrimony may be adjudged for the following causes heretofore or hereafter arising:

a. Adultery [The name of the other person might have to be specified.  The other person might have to appear in court];

b. Willful and continued desertion for the term of 12 or more months, which may be established by satisfactory proof that the parties have ceased to cohabit as man and wife [this does not necessarily mean that they live in different homes];

c. Extreme cruelty [this is the form that is most often used; the explanation does not have to be extreme or cruel], which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; provided that no complaint for divorce shall be filed until after 3 months from the date of the last act of cruelty complained of in the complaint, but this provision shall not be held to apply to any counterclaim;

d. Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further, that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation;

e. Voluntarily induced addiction or habituation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, P.L.1970, c. 226 or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

f. Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint;

g. Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant's release, the parties have not resumed cohabitation following such imprisonment;

h. Deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff;

i. Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.

How do we tell the children?

There is no single, easy answer to this question. How to handle this varies from child to child. You will have to figure out the best approaches to take with each of your children.  I want to encourage you to ask your therapist or to seek out a child therapist to help you find an appropriate approach.

Articles often appear on the Internet. Try searching for "divorce tell the children"

After the divorce, can mediation still be helpful?

Disagreements can still arise after the divorce.  Regardless of whether you used mediation before the divorce, mediation can still be used later.  Perhaps one of you wants to change the amount of support being paid.  Or maybe some item was omitted from the original agreement.  The two of you are allowed to make decisions together without the use of lawyers or mediators or the court.  However, if you cannot reach an agreement peacefully, then mediation probably will be able to help you.

Separation instead of divorce: Can we mediate that?

The issues to be decided for a separation are very different than those for a divorce. Negotiating a separation agreement is a specialty area of mine.

If you have agreed to divorce but you are separating for a while before the divorce, you will need to agree on issues related to finances and to parenting, to be in place until your divorce hearing. The mediator can help you identify the issues that need to be agreed upon, and help you negotiate those terms.

If you are separating for a while in order to determine if you want to get divorced, then an entirely new set of issues is involved. For this, I offer what I call a "structured separation." The separation period needs to have a process in place that is aimed at helping you determine the answer to the big question: "Do I really want a divorce?" If you simply live apart just to see what it's like, it is my observation that you will end up getting divorced. I am experienced in helping couples negotiate a plan that lays out the rules during the separation period and helps them study their relationship to see if they can make their marriage work.

Selling the house: Capital Gains

If the two of you own a house together, you will have to decide if you are going to sell it, or if one of you is going to buy the other's half share of the house.

Here's a summary of the tax effect:

• Each party has a $250,000 tax exemption from the profit.
• To take advantage of the exemption, you must have been in the principal residence for 2 out of the previous 5 years.
• You can reapply the $250,000 on the sale of another home every 2 years; if sooner, it is prorated.
• If a couple jointly own the house after divorce, and if one of them qualifies for the $250,000 because he/she has occupied the house 2 out or 5 years, then the other spouse also qualifies for the $250,000 exemption.
• If one partner buys half the house from the other during the first year after the divorce, the basis on the original half is the original basis of that half; the basis of the 2nd half is the selling price. In this case, the seller (the owner of the first half) pays no tax.

Social Security: How is it affected by divorce?

From the Social Security Administration (more information is available at www.ssa.gov):

Changing your name on your Social Security card: If you change your name, be sure to tell both Social Security and your employer. This will assure that your earnings will be properly reported by your employer and recorded in our records. You can get a new card from Social Security with your new name.

How divorce affects your future retirement benefits: If you are divorced after at least 10 years of marriage, you can collect retirement benefits on your former spouse's Social Security record if you are at least age 62 and if your former spouse is entitled to or receiving benefits. If you remarry, you generally cannot collect benefits on your former spouse's record unless your later marriage ends (whether by death, divorce, or annulment).

How divorce affects survivors benefits: If your divorced spouse dies, you can receive benefits as a widow/widower if the marriage lasted 10 years or more. Benefits paid to a surviving divorced spouse who is 60 or older will not affect the benefit rates for other survivors receiving benefits.

How remarriage affects survivors benefits: In general, you cannot receive survivors benefits if you remarry before the age of 60 unless the latter marriage ends, whether by death, divorce, or annulment. If you remarry after age 60 (50 if disabled), you can still collect benefits on your former spouse's record. When you reach age 62 or older, you may get retirement benefits on the record of your new spouse if they are higher. Your remarriage would have no effect on the benefits being paid to your children.

How retirement affects survivors benefits: If you are collecting survivors benefits, you can switch to your own retirement benefits (assuming you are eligible and your retirement rate is higher than the widow/widower's rate) as early as age 62. In many cases, you can begin receiving retirement benefits either on your own or your spouse's record at age 62 and then switch to the other benefit when you reach full retirement age, if that amount is higher.

Retirement

There are many types of retirement plans. Each has its own method for how funds are added to it, who adds the funds, when they are taxed, how they are transferred. All of them, though, have the same considerations in divorce negotiations: The portion of the retirement plan that was earned during the marriage, and all growth of the investment related to that portion, is a marital asset and is eligible for division between the parties. It doesn't matter when the funds are received - only when they are earned. For example, if someone began employment with a pension plan in the 5th year of a 20-year marriage, and retired 10 years after the divorce, the first 15 years of that pension covering 25 years of employment belong to both parties. However, figuring out the value of those 15 years is sometimes difficult.

IRA: Retirement savings invested by individuals (outside of the workplace).

401(k): Retirement savings invested by employees, usually through payroll deductions.

Defined benefit plan: This is the type of retirement fund in which the employee will receive a fixed amount of income per month after retirement. The amount received is usually dependent upon how many years of employment there were, and how much the employee was earning during the last few years. Generally, private sector funds do not require employee contributions to the fund, whereas public sector funds usually do. Usually, there are penalties in the form of reduced monthly payments if retirement occurs before a certain age and/or a certainly number of years of employment. The employee has no control (and does not need any control) over how the plan might be invested. Income from the plan is taxed when received. Determining the marital value is difficult.

Defined contribution plan: This is quite different from a defined benefit plan. With a defined contribution plan, usually both the employee and the employer make contributions to the employees fund. The employer (and the IRS) sets up rules on how much can be added by the employee and employer. The value of the plan also grows, depending on how the fund is invested. The employee's contributions to the plan are tax deductible, and are taxed when received after retirement. The following are generally considered to be types of defined contribution plans: 401(K) plans, 403(b) plans, employee stock ownership plans and profit sharing plans.

Cash balance plan: This is very similar to a defined contribution plan. Each year, the employee’s account is credited with a pay credit and an interest credit. The pay credit is a percentage of salary. The interest credit is added each year, as defined by the plan. So, the value of the plan is equal to the amount that is in the fund at any given time. The employee can take the account as a lump sum or an annuity when employment ends, if vested as per the rules of the plan. The payout does not take into account the employee's age or number of years with the company.