Property Division in Massachusetts Divorce

During a Massachusetts divorce, property division encompasses many different categories of assets, including real estate, retirement savings, and even pets.  Debt is another part of the property division process.

The division of property must be fair, with the standard being “equitable.”   Equitable does not mean equal, although many clients assume that property is automatically divided equally in a Massachusetts divorce.

Remember this distinction – we are not a “50/50 state” where each spouse automatically gets a half. Although an equal division of assets may be equitable in some divorce actions, this certainly isn't always the case.

Equitable property division is addressed in Massachusetts General Laws c. 208, § 34.  This statute specifies factors that either must or may be considered by the court when assigning the marital estate.  Factors include:

  • Length of the marriage
  • Conduct of the parties during the marriage
  • Age & health
  • Occupation
  • Amount and sources of income
  • Station (or lifestyle)
  • Vocational skills & Employability
  • Debts
  • Opportunities for each spouse to acquire future assets and income
  • Needs of the parties

Additionally, the court may consider the contribution of each of the parties to the family unit.  If your divorce is being handled through the court process, or you are preparing for a trial, remember the Massachusetts Probate and Family Court judges have broad discretion in this area.

Property division
Attention must be given to identifying all property as part of your Massachusetts divorce.

Identifying the Marital Estate

Before any property is divided, the marital estate must be identified.  Whereas some states consider some property marital and some non-marital, the law in Massachusetts is that all property is subject to division.  Furthermore, the Massachusetts statute allows the court to award either the husband or the wife “all or any part of the estate of the other.”

So, what should you remember? Basically, everything is on the table, including real estate, personal property, retirement benefits, legal and equitable interests in property (for example, stock options and grants), and gifted and inherited assets – not to mention the table itself!

Social Security – Not Part of Your Marital Assets

An exception to this rule is that anticipated social security benefits may not be included as part of the marital estate nor may they be divided as part of your divorce agreement because the social security system is regulated by the federal government.

This does not mean that you are not able to receive benefits from your former spouse's social security however.    To read more about divorce and social security benefits, please read our blog post on the topic.

Property Division: A One-Time Event

While some parts of a divorce case such as alimony or child support may be subject to modification in the future, property division is a one-time event unless extreme circumstances are involved, such as fraud. Especially in longer-term marriages with substantial assets, the division of assets and debt allocation can play a major role in someone's quality of life post-divorce.

If your divorce case involves complex marital assets, such as a family owned business, income producing real estate, trust assets, pensions – including municipal or state pensions, then make sure your Massachusetts divorce lawyer or mediator is experienced with these issues.

The attorneys and mediators at Next Phase Legal LLC are well-versed in financially complex divorce cases.  Contact us to learn more.

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