A divorce is the legal dissolution of the union between two people whose assets and liabilities were bound together through marriage. So, when you get divorced, one of the many issues that you and your spouse need to consider is how your assets and liabilities will be divided between the two of you.
Dividing property during your divorce can be both paperwork-heavy and emotionally draining, but taking advantage of the services offered by an experienced Massachusetts divorce lawyer can help you and your spouse resolve this and other issues as amicably as possible.
Equitable Division of Property in Divorce in Massachusetts
In a Massachusetts divorce, your assets and liabilities should be divided according to the concept of “equitable division”. This does not mean that your assets and liabilities must be divided on an equal or 50-50 basis, but that they should be distributed in a manner that is fair and equitable based on a variety of factors.
It is always best if you and your spouse can decide for yourselves how your property will be divided. This may also require you to hire a professional such as an accountant, a financial analyst, or an actuary to assist you in assigning a monetary value to each of your assets.
However, if you can’t come to an agreement on these issues, a judge will decide for you based on what he or she believes to be fair and equitable. When deciding how your property will be divided, the judge will examine a number of different factors, specifically:
- Your individual contributions to your marital estate and household;
- The age and health of each party;
- Your individual skills, occupations, and earning capacities;
- Your collective financial liabilities;
- The needs of your dependent children, if any;
- The length of the marriage; and
- The conduct of the parties during the marriage
Even if you and your spouse do come to an agreement on how your assets and liabilities will be divided, you will still need to submit these agreements to the court for a judge’s approval.
Marital Property vs. Separate Property
Marital property refers to assets that were acquired by you and your spouse during the course of your marriage. This is in contrast to separate property which refers to assets acquired by either of you before you were married, or as a gift or inheritance during the marriage.
Separate property will usually be awarded to the spouse who owned it before the marriage, but not always. Often, a couple’s assets will be commingled during the married, making it much more difficult to be separated into marital property and separate property during a divorce.
For example, if one party owned a house prior to the marriage, but the other party made the lion’s share of the mortgage payments or made significant improvements to the house during the marriage, it will be more difficult to determine whether the house should be treated as separate property or marital property.
Mediating The Division of Property
There are cases wherein you and your spouse can engage in mediation rather than take a property dispute to court. For this to happen, you will need to find a mediator, whose task it will be to oversee the situation and bring you and your spouse to an agreement without becoming partial to one party or the other.
Mediation can be used in a divorce to resolve disputes regarding property division and other issues. In fact, some jurisdictions require couple’s to consult with a mediator to attempt to work out any disputes prior to having a judge rule on these matters.
Once you come to an agreement with your spouse through mediation, you then need to make it legally binding by enlisting the services of an attorney to write your decisions in the form of an enforceable contract. One or both your attorneys will then finalize and approve the agreement before it is submitted to the judge for the court’s approval.
Mediation can help you and your spouse resolve disagreements regarding the divisions of your assets and liabilities, so that legal action can be avoided and the issues can be settled peacefully. But, while meditation can help you resolve disagreement outside of court and, thereby, limit the cost of divorce, it is not recommended when the conflict between you and your spouse is intense, or if the ground for filing the divorce involves domestic violence.
How Premarital Agreements Affect the Division of Property in Divorce in Massachusetts
If you and your spouse have a premarital agreement in place, the division of property in divorce in Massachusetts may be easier. This is because most premarital agreements dictate how a couple’s property should be divided if and when they divorce.
However, in order for a prenuptial agreement to be enforceable, the judge must find that it was “fair and reasonable” when it was signed and is still fair and reasonable now when it is to be enforced. An experienced Massachusetts divorce lawyer can advise on what the court will consider “fair and reasonable” with regard to a premarital agreement and any other issue involving the division of property during your Massachusetts divorce.
Get in Touch With An Experienced Massachusetts Divorce Lawyer
How your assets and liabilities are distributed in your divorce can have a significant impact on your financial circumstances from the time you file for divorce until long after your divorce has been finalized. An experienced divorce lawyer can help you protect your financial health and plan for the future during this challenging period of your life.
If you are contemplating or going through a divorce in Massachusetts and want quality assistance, contact the Law Offices Of Richard Mucci at 781-729-3999, or complete our intake form to arrange a consultation with an experienced Massachusetts divorce lawyer.