In a Massachusetts divorce, one of the “big three” issues that must be resolved before the divorce can be finalized is the division of marital property – and debts (the other two big issues being custody/parenting issues and financial support in the form of alimony and/or child support). While each of these categories has the potential to create major conflict during divorce proceedings, property division may be the most complicated to sort out.

In many cases, one party feels adamant that a certain asset is “theirs” because he or she worked hard to earn it. In other cases, one spouse feels that he or she is entitled to a bigger percentage of the assets due to the fault or actions of the other spouse.  And, in some cases, one spouse believes that the other spouse is hiding assets.

Whether the marital estate in question is worth hundreds of dollars or millions of dollars, it is imperative to know what is at stake before agreeing to any type of property division. Hiring a competent, experienced divorce attorney is critical in this regard. A good attorney will help you see the forest through the trees with respect to a “fair” property division. Spending more in legal fees than the marital estate is worth serves no purpose for either party and only furthers the discord between everyone involved.  

Massachusetts is an “equitable division state.”

In Massachusetts, each party to a divorce does not automatically or necessarily receive 50% of the marital assets. While it often works out that way, a 50/50 split should not be taken for granted. In fact, MA is an equitable division state – meaning that, if the parties cannot reach an agreement, the courts will divide marital property in a reasonable and fair manner. Reasonable and fair does not always equate to 50/50.

So what does “fair and reasonable” really mean? Massachusetts law dictates what parties should consider and what courts will consider when fashioning a property division between soon-to-be-ex-spouses. These factors include (but are not limited to) the following:

• The length of the marriage
• The ages and health of each spouse
• The occupation of each spouse
• The ability of each spouse to earn income
• The sources and amount of income of each spouse
• The employability of each spouse
• The contribution of each spouse towards the family’s home
• The needs of the children (both current and future)
• The conduct of each party during the marriage

First thing’s first

Before the parties and/or the court can determine an equitable division of property, said property must first be identified. That means that each and every asset and liability of each spouse individually and jointly must be identified and valued. Only then can a truly equitable division of assets take place. Marital property includes just about everything you can think of, including the following:

• Real property (the marital home and any additional real estate)
• Financial accounts (bank, retirement, investment, etc.)
• Business interests (including any intellectual property rights)
• Any future inheritances and/or interests in any trusts
• Personal property (art collections, furniture, electronics, etc.)

Conversely, marital debts consist of credit card debt, mortgage balances, home equity loans, and more.

Regardless of whether an asset or debt is titled individually or jointly, it may still be considered part of the marital estate, and therefore subject to division. Moreover, whether an asset should be considered marital property may be hotly contested.

It is therefore advisable to hire an experienced divorce attorney knowledgeable of the law and current trends of the court regarding property division in divorce cases. Contact Attorney Rosanne Klovee to discuss your specific situation. This is not something you wish to take lightly.