SPLITTING UP AND SPLITTING ASSETS

Couples in a divorce in Massachusetts need to divide all their marital property and debts, assigning property, money, and debts to one spouse or another. All property, income, and debts acquired during the marriage are considered “marital”—it does not matter if one spouse made more money than the other or if the couple kept separate bank accounts and paid for expenses separately.

How Courts Decide Asset Division

By law, Massachusetts is not a “community property” state, but in practice, even after litigation, most property settlements end up very similar to what they would be in community property states. In community property states, premarital property is defined to be “separate property” belonging to one person, and all property accumulated during the marriage (with the possible exception of inheritances) is defined as “community property,” belonging equally to both spouses. In community property states, couples are obliged to follow an exact 50-50 split of community property.

In Massachusetts law, by contrast, a judge can throw all property, both premarital and marital, into the mix, and the court does not have to divide it evenly. If a court, rather than the couple themselves, is deciding how to divide assets, Massachusetts law specifies that “the court may assign to either husband or wife all or any part of the estate of the other.” In other words, the court can take all the property of one spouse, even premarital, and give 100% of it to the other spouse!

The Massachusetts statute, Massachusetts General Law, c. 208, §34, lists the factors that either can be or must be considered by the court in determining how assets are divided.

These equitable distribution factors include:

·       How long the marriage lasted;

·       The ages of both parties;

·       The behavior of each party during the marriage;

·       The health status of both parties;

·       Occupations of each party;

·       The degree of employability of each party;

·       The vocational skills of each party;

·       How much income each party brought to the marriage and where it came from;

·       Amount of liabilities each party brought to the marriage;

·       The social status of the parties while they were married;

·       If there are any minor children, what their needs are and will be after the divorce;

·       What, if any, opportunities exist for both parties to acquire capital assets;

·       The estates belonging to each party and what their contributions were to preserve and grow those estates;

·       What were the contributions of each party when one party is a homemaker;

·       The specific needs of each party; and others.

All of these factors impact a 50/50 division into a court order that is tailored to the individuals involved. If one party received an inheritance during the marriage, or other kinds of gifts, they could be considered the property of both, based upon the case. Or if one spouse owned a business, it would be considered an asset of the marriage and therefore subject to being divided. Likewise, time shares, stock options, cash, tax shelter assets, even future assets and retirement accounts would be eligible for division between the parties. If, for example, one spouse had a collection of coins, it would have to be noted on a financial statement after it was fully evaluated. Virtually anything is subject to being divided between the spouses, and not always equally.

Massachusetts Divorce Property Division

Though marital property can be being divided however the court sees fit, not all assets are subject to this. Anything that falls under the umbrella of separate property cannot be divided. Separate property includes all income, property, and assets that were acquired before the marriage.

Who Gets the House in a MA Divorce?

If the home was acquired after the marriage, it is called marital property and will be used in the divorce proceedings. All property, including the house, must be shared equitably in this situation. As a result, if a couple can compromise to what is equitable in their case, one of them can gain home ownership.

In some cases, a judge would be the one to determine the best option.

In certain cases, a court will give the individual who has custody of the children from the marriage possession of the marital home. Furthermore, a Massachusetts court may consider homeownership to be a portion of child support. In such a case, one partner does not “lose” possession of the home; rather, they must wait until it is sold before receiving their share of its worth.

The Power of Bentley Law Group in Representing You and Your Case

Divorce is often accompanied by negative emotions and stress, often making the divorce process even more difficult.

At Bentley Law Group, we believe in a very empathetic and caring approach to helping our clients pursue the best possible outcome of a divorce, fighting for the most equitable and fair division of assets as well as child support.

We are by your side throughout the entire process, with the goal of getting you beyond this phase and prepared to transition into a new beginning.