Why should I divide property I already had before we got married?

It’s bad enough you have to divide the stuff you acquired during the marriage! You may feel your contributions to the marriage were greater than your spouse’s or that you’re in greater need of a larger portion of the assets. But to have to also give your spouse some of what you already brought into the marriage? Now that seems unfair!

Under MA property division law, ALL property owned by the parties either individually or jointly is considered for division. Doesn’t matter who obtained it, whose name is on it, or when it was obtained.

However, this does NOT mean that all property is divided “equally.” MA uses “equitable distribution” to determine how to allocate the assets of the marriage. A number of factors are taken into account, including the length of the marriage, the parties’ incomes, ages, health, contributions to the marriage, and ability to acquire future assets and other factors.

How is premarital property analyzed?

Although even premarital assets are considered for division, those assets deserve and usually receive careful analysis.

In determining whether and to what extent the value of a premarital asset will be considered for division, the court has considerable discretion. The court in its analysis will usually focus on the following:

- Length of the Marriage: the longer the parties are married, the more likely it is the court will include premarital property for division.

- Premarital Cohabitation: this is connected to length of the marriage. The longer the parties resided together before marriage, and specifically, the greater their financial interdependence during that time, the more likely it is that premarital property will be included for division.

- Commingling of Assets: The more the premarital assets were mixed with marital assets, the greater the chance the judge will include the premarital asset for division. For example, if one party received money before the marriage, but later invested that money in or mixed it with marital assets, the judge is less likely to give a credit to the person owning the asset before the marriage.

- Contributions of the Parties Toward Premarital Asset: In determining whether and how much of a premarital asset to include, the judge will consider the parties’ respective contributions of the parties to the accumulation, preservation, and appreciation of the asset during the premarital cohabitation period.

As outlined above, although premarital property is technically considered for division in divorce, whether the other party will receive any portion of it, and if so how much, is very fact-dependent. If you have any questions about premarital property, especially if its value is substantial, it’s best to have this issue analyzed by an experienced divorce lawyer before making any decisions on how to handle it.