The division of marital property in Massachusetts is guided by statute, M.G.L. c. 208, § 34. Pursuant to Section 34, any asset or liability (debt) that you or your spouse have is considered a “marital asset” that is subject to division.
Understand that an asset is a “marital asset” if either you or spouse have some interest in that asset. It does not matter when the asset was acquired (for instance, before the marriage or through a gift or inheritance from one side of the family.) It also does not matter how the asset is held (for instance, whether a house is in your spouse’s name alone or held jointly.)
Also important to understand is that, while a “marital asset” is subject to division, this does not mean that the Court will necessarily divide every single asset, or that every “marital asset” will be divided 50/50 between the spouses. Whether and how a “marital asset” will be divided depends, as with many issues in divorce, on the specific facts of your case.
If the parties and counsel cannot agree on an “equitable” division, the court will decide what is “equitable” based on the factors listed in Section 34. Those factors are:
- length of the marriage;
- conduct of the parties during the marriage (usually referring to conduct having a financial consequence);
- age of the parties;
- health of the parties;
- station (that is, your standard of living during the marriage);
- amount and sources of income;
- vocational skills;
- liabilities and needs of each of the parties;
- opportunity of each for future acquisition of capital assets and income;
- present and future needs of the dependent children of the marriage;
- contribution of each of the parties in the acquisition, preservation or appreciation in value of the marital assets;
- contribution of each of the parties as a homemaker to the family unit.
When dividing marital assets, Courts (and therefore lawyers when negotiating with opposing counsel or advising their clients) typically begin their analysis with the presumption that marriage is an economic partnership and the marital property should be divided 50/50. There are many cases, however, where the marital assets will not, or cannot, be divided 50/50, and where the parties and counsel must be more creative in reaching agreement as to how to divide those assets.
Again, this section provides only general information. Each case turns on its own facts.
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