Property Separation in a Divorce in Massachusetts

The longer a married couple has been together, the more likely that they have acquired property together and their financial affairs have become entwined. This means that if the couple then decides to go through a divorce it can be complicated deciding on how to divide those assets. Property separation can be a vexed issue for separating couples and many choose to get help with decisions about who gets what from a divorce attorney or the court.

As with all decisions that have to be made when going through a divorce, the best solution is when the two spouses come to a mutual agreement about the division of property. This avoids having to use the court, although an attorney can still provide advice that can be useful in making decisions.

Of course, there are many cases where spouses cannot or will not cooperate in making sensible decisions about separating property, or anything else for that matter. One of the reasons for divorce is that the ability to communicate may have become strained, or anger, bitterness, distrust and even fear may have become too much for consensus planning. If any of these scenarios fits your situation, then you should get legal advice and take the matter to the court to decide.

In Massachusetts, the law requires any property to be divided ‘equitably.’ This doesn’t necessarily mean that property is divided equally, as the court takes into consideration a whole lot of things about the marriage up to the point of divorce and the financial circumstances that each spouse are likely to face. Equitable division of property, then, means a ‘fair’ division of property.

Marital and Separate Property

The state regards property that the couple owns either ‘marital’ property or ‘separate’ property. Marital property is property that is shared by both spouses, while separate property is property that one or the other spouses had before the marriage or had acquired through a gift or inheritance. These definitions can become blurred over time. Take an inheritance, for example. If one spouse inherits a sum of money and deposits it into a joint bank account which is contributed to and used by both spouses over a lengthy period of time, it would be hard to classify the original amount as belonging only to the spouse who had inherited it.

The longer a married couple has been together, the more likely that separate property becomes confused, or ‘commingled’ with marital property. When there is disagreement about what is marital and what is separate property between the two spouses, it may take the court some time to come to a decision about what seems equitable. Generally, property that one spouse regards as their own separate property is more likely to be viewed as such by the court if it is a physical asset, such as a gold ring, a property, or heirloom. If it is a sum of money that has become mixed over time with jointly owned cash assets or used to purchase a jointly owned property, then the court may decide that it is part of marital property, even if the monetary value is assigned to benefit the spouse who had the most contribution.

One of the reasons why some attorneys suggest having a prenuptial agreement before marriage is that if one of the spouses to be owns a tidy sum or substantial assets and would want to retain them if the marriage fails, it makes the property separation process a whole lot easier.

Basically, if you cannot agree with your spouse about whether property or assets you have is to be divided between you or retained by just one spouse, you have to rely on the court to make a decision, whether you like the decision or not!

Dividing Marital or Shared Property

Any shared property is usually itemized and assigned a monetary value before any decisions about separating it are made. This may mean that individual items of value and property have to be appraised by a valuation expert. Once all the shared property has been valued and a monetary value assigned, it can make it easier to decide on who gets what. Shared property may need to be sold before its distribution, or it may be kept if it is thought that its value might increase, e.g. if the property market is at a low point. Some divorcing couples might also decide to keep their jointly owned home unsold until children grow up. This delay doesn’t mean that the eventual division cannot be decided in advance.

Criteria the Court Uses to Decide On Marital Property Separation

Just because Massachusetts law makes a decision about marital property on an equitable basis, this doesn’t necessarily mean that it is just divided in half and then the two halves given equally to each spouse.  Division is done after often lengthy consideration of what is deemed fair. The following factors are weighed up by the court before deciding on marital property separation:

• debts;
• the length of the marriage;
• the best interests of dependent children;
• age and health of each spouse;
• opportunity to earn an income after divorce;
• employability;
• future potential to acquire assets e.g. though inheritance;
• each contribution to the shared property throughout the marriage;
• misconduct of either spouse including financial misconduct and gambling.

Deciding Who Pays the Debts

Making a decision about who pays any debts that the couple has acquired can be as important as deciding about property separation. A similar process to property is used to determine whether debt is shared or separate and how shared debt should be divided between the two spouses. Shared property may need to be sold and the debts paid before making a final decision about what is left over.

Contact an Experienced Massachusetts Divorce Lawyer

Divorce can be a stressful experience. If you cannot decide on how o divide up the property you jointly own, you are advised to seek legal help from an empathetic and experienced Massachusetts divorce lawyer before contacting the court. In Winchester MA, contact the Law Offices of Richard Mucci at 781-729-3999 or use the contact form on the website to arrange a consultation.