Massachusetts Property Division Lawyer
Massachusetts follows the popular “equitable division” approach to distributing property/money after divorce, which is governed by G.L. c. 208 sec. 34. The law’s goal is to distribute the property fairly, taking into account a number of factors bearing on the parties’ abilities to produce income and long-term financial prospects. Fault and gender were once significant considerations, but not anymore. The court now focuses on the economics and aims to keep the parties as close as possible to their standing of living during marriage. The larger the estate, and the greater one spouse’s financial dependence on the other, the more likely it is that there will be a long-term financial impact from the divorce, and the judge will consider that for division.
Property division is the component of divorce for which it is most important to have quality representation. Judges have broad discretion in determining what property is classified as “marital property” for the division and what is “fair” division; so a skilled, aggressive Massachusetts Property Division Lawyer can be a difference-maker in your financial standing when you walk away from the divorce.
To determine what property/money goes to whom, the judge must first determine what constitutes the “marital estate” – or marital property. In Massachusetts, the definition of marital property is broad and ever-expanding: it may include property acquired before marriage as well as during; and it also includes both tangible property such as houses and cars and intangible property, such as investments, portfolios, stock options, retirement, and timeshares.
The judge can rule that the property stays with the sole title holder, can assign it to the other party, or order that it be sold to a third party for the proceeds to be divided. If there are children involved, their living arrangements likely will impact the judge’s decision.
One of the more valuable assets in a marriage, they’re also subject to equitable division. IRA’s can be “rolled over” to the other party, and although social security benefits are technically part of the marital estate, judges may consider a party’s anticipated benefits when determining the division.
Again, even property acquired before marriage may be “marital property.” The more contribution there is to the property’s value by the “non-owner” during the marriage, the more likely it is that the judge will consider it marital property, and include it in the marital estate.
Gifts, Inheritance, Trusts:
If acquired during the marriage, they may be ordered transferred to the other spouse. Also, in certain circumstances, trust assets can be used to satisfy payment.
Advanced Degrees or Professional Licenses:
although not “property” subject to division, judges consider increased earnings potential in the division of property and alimony
unvested stock options may be included in the marital estate for the division. Judges consider whether the stock option was given for effort before or during the marriage.
judges can combine both parties’ debts and allocate the total debt equally; keep the respective debts with the responsible party, or do something in between.
Automatic Restraining Order
Under Supp. Prob. Ct. Rule 411, when one party files the complaint and the other gets notice, an automatic restraining order against both parties immediately goes into effect because it wouldn’t be fair once the divorce is filed, for the parties to manipulate resources for their financial benefit. Here are the restrictions:
1. neither party can sell, transfer, hide … etc. property. The parties may use their resources for “reasonable expenses of living,” “ordinary and usual course of business … [or] investing,” and litigation and attorney’s fees. However, for other transactions, they need either a written agreement by both parties or a court order.
2. neither party can incur further debt against the other party (e.g. credit line secured by marital residence)
3. absent agreement or court order, neither party can change the beneficiary of any life insurance, pension, retirement.
4. can’t cause the removal of other spouse or kids from existing medical, dental, life, auto, or disability insurance.
How the Judge Determines Division
Under G.L. c. 208 sec. 34, the judge has significant discretion in how to divide the property and considers a number of factors. The law is that there are some factors the judge must consider, and others the judge may consider (optional). However, many of them are overlapping and interrelated.
The judge must consider:
Length of the Marriage:
the longer the marriage, and the greater the financial dependence of one spouse on the other, the more likely it is that the judge will order property and money transferred from one to the other. Also, the judge may consider the spouses’ contribution to the value of the property during marriage.
Conduct of the Parties During Marriage:
Financial misconduct is likely to weigh heavily in the judge’s determination. Some examples are gambling, spending extended periods away from the home without producing income, stealing from a family business, and transferring assets in anticipation of divorce. In contrast, misconduct with little financial impact, such as adultery, matters little under the new equitable division laws. The courts focus on the finances.
whether health impacts income and ability to work
income, ability to meet needs, the potential for future earnings. If one parent sacrificed education and income to stay at home to tend to the children, the court is likely to take that into account.
employment, trusts, rental, investments, and other sources
earnings and future earnings potential
health, age, time out of work
Estate of Each Party:
property owned individually (again, even property acquired before marriage may be deemed “marital property.”)
Liabilities & Needs:
the court considers a source of liabilities: debt for medical reasons v. gambling
Opportunity for Future Acquisition of Capital Assets & Income: encompasses many of the factors above
Needs of Dependent Children of Marriage:
this is usually how custodial parent gets the home.
The judge may consider ( the judge has discretion whether to even consider these):
The contribution of Parties to Acquisition, Preservation, or Appreciation in Value of Respective Estates:
considering both economic and non-economic contributions, this is a factor the court uses to determine whether property acquired before marriage can be classified as “marital property.”
A contribution of Parties as Homemaker to Family Unit:
judge considers the financial impact of these non-economic contributions. If one parent sacrificed education/income to be a homemaker, the court may consider that.
Division of property for divorce is neither deductible by the payor nor taxable to the receiver as income.
Connection Between Property Division and Alimony
Although these are technically separate determinations that the judge makes, they’re interrelated. Alimony is an award by the court for support and maintenance from one spouse to the other. Absent an agreement by the parties, alimony merges with the divorce, and is, therefore, subject to modification in the future, at the request of either party, if there is a “material change in circumstance” (losing a job, illness affecting income). Property division, on the other hand, survives the judgment, and is not subject to modification: the judge’s decision on distribution is a final one. Although the judge makes a determination on each issue, the judge uses essentially the same factors to make both determinations, so for practical purposes, the property division affects the alimony and vice versa.
It’s important to speak to an attorney as soon as possible to ensure that you’re taking the right steps to protect yourself. Also, you need a skilled litigator to get you what you’re entitled to. Contact Massachusetts Property Division Lawyer Bill Farias for a CONSULTATION at (508) 675-0464 or submit the contact form on this page.