MassachusettsMarital Property Division

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In a divorce case, the courts have to sort out every detail of a marriage.  This includes property division, specifically Massachusetts property division.

No divorcing couple should proceed without retaining a licensed attorney who works in these cases.  Property division matters can be more complicated than you think they will be and lawyers have the proper training/experience to tell the judge what a divorcing spouse wants and/or needs from the property division.

Property Division Divorce Laws in Massachusetts

The purpose of Massachusetts property division laws is to make sure that marital property is divided equitably between the spouses but not necessarily in a 50-50 split.  Massachusetts marital property is divided under the considerations of Massachusetts Code Chapter 208, §34 but the trial court judge receives great discretion when converting Massachusetts marital property into separate Massachusetts divorce property.

Massachusetts is an equitable distribution state.  This means that with regard to Massachusetts divorce assets, anything the spouses had before a marriage usually will not be included in Massachusetts divorce assets or Massachusetts divorce property.  The only property that comes into the court's distribution is that which is legally classified as property of the marriage subject to Massachusetts Code Chapter 208, §34. 

What is considered Marital and Non-Marital Property?

Marital property is generally defined as all items acquired during the marriage by either spouse as well as separate items that are brought into a marriage and converted into marital property. 

Non-marital property is typically defined as property that each spouse had before the marriage or acquired individually without including it into the marital property.  This also includes property classified as non-marital under an agreement between the parties.

Massachusetts Code Chapter 209, §1 states that property owned before the marriage remains non-marital property.  However, the court will ultimately decide what property will be subject to a property division scheme.

Dividing Assets and Debt

After the court decides which property is available for distribution, the next step is property valuation.  The final step is the allocation of marital property. 

Under Massachusetts Code Chapter 208, §34, the court considers a number of factors in dividing assets and debt.  Some of these are:

  1. The marriage's length
  2. The parties' conduct during the marriage
  3. The parties' earning capacity
  4. The parties' circumstances & necessities
  5. The parties' health

Using statutory factors, judges decide how a marriage's assets should be divided.  Here is a list of the most common property items and the most common allocation scheme used.

  • Cash: Divided equitably between the spouses.
    • Example 1: A joint savings account has $5,000. The court would most likely divide the money equitably between the spouses.
    • Example 2: A joint savings account has $5,000.  One spouse contributed $3,000 and the other contributed $2,000.  The amount may be divided in an even split or may be more balanced if the $2,000 contributor has fewer assets than the $3,000 contributor.
  • Retirement Plans: Divided based on the duration of the marriage at the time the benefits accrued, looking at the present value of the plan and/or survivor benefits.
    • Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 20 of those years.  The ex-spouse would be entitled to a portion of the retirement plan that was acquired during the marriage.
    • Example 2: A spouse has an unvested retirement plan.  No division takes place until the plan is payable to the spouse who has it.
  • Vehicles: Divided based on the values at the date determined by the court.  May be sold or given to a spouse outright.
    • Example 1: A car is owned by one spouse.  The car may be sold with the proceeds to be given to a poorer spouse or the car given to one spouse outright.
    • Example 2: A go-kart has a shared title.  The go-kart may be sold with the proceedsdivided among each spouse or given to a poorer spouse.
  • Insurance: Determined based upon each spouse's health, availability of alternate insurance and premium payments from marital income.
    • Example 1: One spouse has covered the other under employer health insurance.  The other spouse is in good health and can afford alternate health care coverage.  The court would likely have the insured spouse pay a certain amount to the other one and allow the insured spouse to drop the other one from the health insurance.
    • Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits.  If marital income was used to make payments on the insurance, the spouse may be entitled to a portion of the benefits.

Settling Disputes in a Divorce Case with Property and Asset Division

If a spouse is not complying with the property division order, you may go back to court to seek enforcement.  However, Massachusetts case law does not permit modification to the property division order.

The trial court's determinations will not be changed unless there is clear evidence of an abuse of discretion.  This is extremely hard to prove.

Help From a Massachusetts Property Divorce Lawyer

It can not be stressed enough that retaining a Massachusetts property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce.  The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.

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