Home Divorce Divorce and Real Estate in Massachusetts

Divorce and Real Estate in Massachusetts

muccilegal November 7, 2023

The division of marital assets can be a thorny issue when contemplating a divorce, and often the thorniest issue of all is who gets the family home? After all, if the value of your home has been on the rise lately because of its location, its asset value is likely to be the most valuable part of your jointly owned possessions. If you and your spouse cannot agree on what to do about your joint assets, the decision will likely be made by the Probate and Family Law court. How would they decide on what to do about the most valuable thing you and your spouse own?

Massachusetts law on property distribution on divorce

current market valuation must be consideredMassachusetts is what is called an “equitable distribution” state when it comes to decisions about marital assets if the court has to decide who gets what after a divorce. The term “equitable distribution” does not mean that marital assets are simply divided equally, i.e. 50/50 between the two spouses, although in some cases, the distribution of assets may be more or less equal in value. What the term means is that the court will assess the circumstances of both spouse and decide on an asset distribution which it regards as fair.

This might mean that the assets are divided equally, or that one spouse or the other is allocated more than the other. When it comes to the family home, the court will have to decide whether it is fairer to give the home to one or the other spouse or to order the home be sold and the proceeds then distributed on a fair basis to both the two spouses, usually together with any other assets the couple had at the time of their divorce.

More details about the factors the court considers when deciding what is fair (equitable) when it comes to asset distribution later, but there is another option! You and your spouse could come to a sensible agreement about your home and for that matter any other decisions that have to be made on divorce such as who will care for your children if you have any.

You don’t need the court to decide on what happens to your home

The Probate and Family Law Court only intervenes in a divorce case if it is asked to do so. The court prefers couples to come to some sort of agreement between themselves on how to divide marital assets, make sensible, workable decisions about how to care for any children and whether spousal and child support payments should be made. Before a divorce is granted by the court, such an agreement must be presented to the court, signed by both spouses and officially witnessed (notarized).

The main advantage of making an agreement without having to go to court is that you can file for an uncontested divorce, which is the cheapest and fastest option. You can also make decisions about division of assets and particularly what to do about the home based on what each spouse may have contributed to those assets before the marriage or from inheritance. By contrast, generally, the court considers all assets, acquired before or during the marriage available for distribution.

Of course, separations and divorces are all very different. A couple may decide to divorce because the spark has gone from their relationship, but they still want to remain as friends even if they are separating. When communication is still possible, sensible decisions can be made without resorting to the court. This is the cheapest, if not necessarily the easiest, option. If the home has no mortgage or liens and neither spouse particularly wants to keep it, then it can be sold and the proceeds divided between the spouses. If one spouse is keen on keeping the home, then ownership may remain joint or some sort of financial arrangement may be made between the two spouses about how the spouse who doesn’t get to keep the home is compensated.

Divorces unfortunately aren’t always smooth and sensible. The very reasons why the divorce is occurring can get in the way of communicating about what has to be decided. This doesn’t mean that the decisions have to be made by the court straight away. There are divorce counseling agencies that will help couples to make decisions about their divorce. Mediation and counseling can help couples who are not communicating well eventually make decisions which may be sensible compromises. This is still cheaper than fighting a decision in court. Divorce attorneys have professional experience in all types of divorce situations and individual spouses may find it preferable to get legal advice, especially when it comes to making a decision about something as valuable as what to do about the home.

If no amount of counseling, mediation or legal advice helps the couple to make a separation agreement that they are both willing to sign and make work, then the last recourse is the court.

Factors the court takes into account when deciding on distribution of assets

uncontested divorce is cheaper and fasterNote that this article concentrates primarily on what happens to the family home on divorce, but when the court becomes involved, they must take into consideration a range of factors, including the welfare of the couple’s children. The court always considers decisions about the children and their custody arrangements in the best interests of the children. If, for instance, the court decides that one spouse or the other should keep the family home because it is in the best interests of the children, then this might override other considerations such as division of financial assets.

Typical factors the court considers, apart from the effect on any children include:

  • how long the marriage has lasted;
  • the ages and health of the two spouses;
  • the spouses’ assets and debts;
  • how much income is being made by each spouse;
  • the financial needs of each spouse;
  • the conduct of the two spouses during the marriage;
  • the employability of each spouse;
  • the contribution of each spouse to the marital assets;
  • the contribution by each spouse to home making;
  • the opportunity each spouse may have in future to acquire assets;
  • spousal support payments that might be made after the divorce.

Current market valuation of the home should be a priority when considering a divorce

Property values have been somewhat volatile over the last few years in Massachusetts, partly because of the pandemic, but also because the effect interest rates have had on mortgages more recently. Indications are that property values have stabilized and in many cases have been slowly increasing in many parts of the state, while in some locations values have increased more markedly. Asset distribution decisions, particularly regarding the family home, whether by the couple alone or by the court must take into account up to date market valuations if whatever decision is made is to be as fair and ‘equitable’ as possible.

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