Equitable Distribution of Property in Divorce in Massachusetts:

Upon divorce, the parties’ marital property must be divided.  The definition of “marital property” for purposes of divorce in Massachusetts is very broad.  In addition to property owned and acquired jointly, it includes all property owned individually by both parties as well as property acquired before marriage.  Property includes real estate, retirement plans, cars, trusts, stocks, and money in bank accounts among other things.  Even gifts, inheritances, and trusts are considered marital property and may be ordered transferred depending on the circumstances.  In addition, although advanced degrees and professional licenses are not considered property, judges may consider the resulting increased earnings capacity of the party that obtained the additional education as a factor in the property division analysis.

Despite the broad definition of property, it’s important to recognize that “equitable” division does not necessarily mean “equal.”  Although it’s sometimes appropriate to divide the property exactly equally, in some cases, it’s not.  For example, when one spouse contributed significantly more to the marriage than the other, the spouse that contributed more may get more than 50%.  On the other hand, the longer the marriage and the more equal the contributions, the more likely it is that the court will order the parties to share the proceeds equally.

The judge considers several factors in property division, The judge must consider the length of marriage, conduct of parties during marriage, ages, health, lifestyle, occupations, income, vocational skills, employability, estate of each party, liabilities and needs, opportunity for future acquisition of capital assets and income, and the needs of the dependent children of the marriage.  The judge may also consider the contribution of the parties to the acquisition, preservation or appreciation in value of property, contribution of parties as homemaker, and taxes.

A common question on property division is about the parties’ conduct during the marriage.  Does infidelity or cheating affect property division?  The answer is: usually not.  Infidelity will generally only impact property division if there are significant financial ramifications.  If the infidelity led to the squandering of assets or if the unfaithful spouse was spending significant amounts of money on the affair, that may persuade a judge to compensate the other party.  However, absent significant financial impact, the courts generally don’t want to hear about infidelity.

As for how cases are resolved, when parties involved in a divorce can come to an agreement on division of the property they share, the courts in Massachusetts will usually accept those terms presented to them. On the other hand, when the parties involved cannot come to an agreement over how the property will be divided, the Family Court will make that determination considering the factors mentioned above.

To protect the parties from fraudulent transfers of property, an automatic restraining order goes into effect at the beginning of the process and remains in effect throughout the life of the case.  The order prohibits both parties from making significant transfers of the assets.  Parties may only use the assets as they normally would in the regular course of their lives or business.

Depending on the amount at stake, it may be in the parties’ best interest to seek legal representation for a divorce. The reason this is so important is because there are so many legal factors that come into play when determining the division of property, that you do not want to make sure you give yourself the best chance of getting all that you’re entitled to. Your Massachusetts property division attorney should have the experience, knowledge and skill to provide the courts good reason with a solid legal basis as to why you deserve the portion of the assets you are requesting.

As the courts always seek to minimize disruption for the children, it’s preferable to keep them in the marital home.  If there is significant equity in the home the party remaining in the home usually must compensate the other party by either agreeing to divide the proceeds when the home is eventually sold or compensating the other party with other assets – this is typically referred to as a “buyout.”  When determining which party will keep the home, the court will consider which party is in a better financial position to maintain the home and afford the mortgage payments.  On the other hand, the court usually wants the children to remain with the primary caretaker.  These two significant factors often conflict and require skill to handle.

A Massachusetts divorce lawyer will do a thorough property division analysis for you and advise you what the best strategy is as to which assets you should keep and which you should concede.  The lawyer will then devise and execute a plan that gives you the best chance at getting as much of the assets as you’re entitled to and give you a better chance of getting the assets you want.

One of the reasons the division of property can be a difficult issue in a Massachusetts divorce, this is an equitable distribution state.  Because it’s not an automatic 50/50 split, and the court can order any assets transferred from one party to the other, it may be risky to represent yourself if there is a dispute as to how the property will be divided. Without a skilled and experienced Massachusetts divorce attorney you may not be prepared to argue the issues effectively.  There are statutory factors and case law that the court must consider in dividing property.  Representing yourself, you run the risk of giving away too much of your assets or giving away assets you prefer to keep.

Also, unlike other provisions such as child custody, child support and alimony which may be modified after divorce, property division is final, so unless there was some type of fraud at the time of divorce, property division is final at divorce and not modifiable later.

If you want a thorough assessment of your property division issues, contact The Law Offices of Bill Farias.  Attorney Farias is an aggressive, skilled Massachusetts divorce attorney that will provide you with a cost-effective plan that gives you the best chance of getting as much of the marital pot as you can get and also gives you the best chance of getting the assets you want.

DISCLAIMER: This site and all information on it is intended for informational purposes only, and is NOT LEGAL ADVICE. You should seek competent legal representation on any legal matter.