Divorce in Massachusetts: How Property and Assets are Allocated.

One of the most crucial and at times intense aspects of a divorce in Massachusetts is the dividing up of property. Marital assets are not required to be divided 50/50 and there is no legal separation between pre-marital property and property acquired during marriage. Rather, the state is guided by the principle of “fair and equitable” distribution, which is concerned with fairness and not equality.

Equitable Distribution Explained.

Massachusetts is a fair distribution state, which implies that the court will share marital property in a manner they feel is fair depending on the situation in the marriage. Equitable division is not necessarily equal division. Some of the assets may be given to one spouse more than the other should this suit the justice of the law.

Conscious of the duration of marriage, the income earning capacity of each spouse, the contribution of each to the marriage, future necessities, and standard of living that was created in the marriage all these are some of the factors that are taken into account by the courts to set what is equitable.

Marital vs. Separate Property.

Assets have to be categorized prior to the division of assets. Marital property is generally the property and debts that are obtained during the marriages whether it is the name of one person on the account or on the title. This may be real-estates, retirement funds, pensions, bank accounts, investments and even credit card debts.

Separate property typically consists of assets that were possessed prior to the marriage, heritages, and individual gifts that one of the spouses received. Nevertheless, minor property may turn into marital property in case it is combined with joint property or when it is marital use. As an illustration, pouring inherited money in a joint position can alter the way such money will be handled in case of divorce.

Paradoxically, a judge need not differentiate, in any way, between marital and separate property when dividing assets. The exact language of the law, from Chapter 34, Section 208 of Massachusetts General Laws,  is: “In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage.”

Worcester divorce mediator Attorney Julia Rueschemeyer points out that that the general practice of property division can vary by judge and that the language of the law is not necessarily a useful guide to what happens in actual cases: “In many cases, the division of property ends up close to 50-50, even though Massachusetts is not a community property state. And even though there is no “separate property” in Massachusetts, in short marriages (e.g. 1-3 years), many judges implicitly treat premarital property as separate property, awarding spouses the assets they owned prior to marriage.”

Widespread Property Split in Massachusetts Divorces.

The division needs to give special attention to some assets. The marital house can be sold and the money shared or one partner can retain the house and pay the other partner. Pensions and retirement plans during the marriage can also be divided and usually necessitate expert court order. The debts are also handled just like the assets and are allocated according to reasonableness rather than whose signature is in the document.

When you are ready, you are prepared.

Organizing and planning the property division is time-consuming. By collecting financial records at an early date, knowing your own assets and liabilities and having realistic expectations, one can achieve so much better. One of the more complicated assets is pensions, whether public pensions from employment with the state or one of the dwindling number of private company pensions. Because such pensions are a promise of a future stream of payments, understanding their present value requires a complicated actuarial calculation. This allows their value to be compared to the value of other assets, e.g. house equity or 401ks, at the time of divorce. When both spouses understand the value of their assets and there is complete information shared between the two spouses, then there are more chances of agreements being fair, enforceable and lasting.

Final Thoughts

In a Massachusetts divorce, property separation is not about the literal language of the law, formulas, or clear rules. Judges have an enormous amount of discretion in assigning assets or debts to either party. Whether you divorce through mediation or by contested divorce court order, the knowledge of the process of equitable distribution can help the spouses to understand the process of equitable distribution and take steps that will allow them to move forward in their financial lives.