If you have heard that the assets of you and your spouse could be split 50/50 by a Massachusetts court, then you are only partly correct. Of the 50 states, only 9 of them are what are called community property states. In these states (which include Washington, California, Nevada, Arizona, New Mexico, Idaho, Louisiana, Texas and Wisconsin), if it is left to a court to decide how marital assets are divided after a divorce, then they adopt a 50/50 division of these assets. Massachusetts is not one of these states.
Massachusetts is one of the remaining 41 states that have an “equitable distribution” policy. Division of assets is based on what the court decides is “fair and equitable”. This could result in a 50/50 split, but this is not a given, regardless of how long you have been married.
How assets are divided when a couple divorces in Massachusetts
Breaking up after a marriage can be messy, psychologically stressful and challenging when it comes to such important decisions as child custody, child and spousal support and division of assets. There is no compulsion to seek a decision by a court as you and your spouse are free to try and decide how to manage the divorce and its consequences all by yourselves or with the help of friends, family and family law attorneys.
If you are still on talking terms, but your financial arrangements are complicated, the best advice is to seek the help of a divorce attorney first. Mediation can help to bring a satisfactory resolution and pave the way to divide property that is regarded as “joint”. Generally, it is only if a couple cannot come to an agreement between themselves that they then turn to the Probate and Family Law court. By doing so, it means that a judge may decide on how assets (and debts) are divided in a way that one or even both spouses may not exactly be happy about. The judge’s decision will take into consideration many factors that could help to make a decision about how to divide the assets on a “fair and equitable basis”. Some of these factors are explored in more detailed later in this article.
Separate and marital assets
Each spouse is required by law in Massachusetts to complete a financial disclosure to the other spouse when filing for divorce. Generally, assets that are considered for division by a court are those that have been acquired after marriage. These are called “marital assets”. Assets that were the property of one or the other spouse before marriage are not typically considered for division. These include inheritances, bank account balances, property and any other assets.
In Massachusetts, this apparently neat division between separate and marital assets is not always that clear cut. The court makes a decision about what it regards as “separate” and what is “marital”. All assets are considered, in fact. For example, if one of the spouses owned a house before marriage, but both spouses contributed mortgage payments or maintenance costs for that house, then it may be considered as marital, i.e. joint assets. To take another example, if one of the spouses inherited an amount after marriage but the inheritance was credited to a joint bank account or buying property jointly with the other spouse, then this amount may also be considered as marital assets and “equitably” divided by the court together with all other marital assets.
Factors that the court takes into consideration in fair and equitable of marital assets
The court will examine several factors that can help it to make a decision about a division of assets on divorce. These include any combination of the following:
- amount of debt each party brought to the marriage;
- length of time the marriage lasted;
- the income that each spouse may have contributed during the marriage;
- the needs of any minor children after the divorce;
- occupations of each party;
- how old each spouse is at the time of divorce;
- how each party behaved while married;
- how employable each party may be after the divorce;
- how much assets each individual had before the marriage and what happened to these separate estates during the marriage;
- how healthy each party is;
- the specific needs of each party;
- what sort of vocation skills each party has;
- how each party contributed if one had been a homemaker;
- opportunities for either party to acquire capital assets;
- what, if any, opportunities exist for both parties to acquire capital assets.
How the length of a marriage could affect the division of marital assets
To address the original question at the start of this article, how does the length of a marriage affect the division of marital assets? As can be seen from the list given above, this is certainly one, but not the only factor, considered by a court when deciding how to divide the assets of a married couple on divorce.
Each decision is an individual one, so there is no easy single answer to this question.
Take a young couple, for example, who get married when they are out of university or college at 21. They don’t own anything of any real value. They are both well educated and have good jobs and career prospects. After 10 years of marriage, they have had no children and are both employed. They have been paying off a mortgage together and have some shared cash in a bank account and jointly owned possessions. If the couple still cannot agree on how to decide how to split their marital assets, the court is most likely to decide to split the whole lot 50/50 as there is no reason to suggest that there would be a fairer or more equitable division of property and there was no separate property to consider, either.
Now, take another example. An equally young couple is married for 20 years, then they decide that their marriage is irreconcilable and file for divorce. In this example, the husband has had a steady job with promotion and good future career prospects. His wife decided early on to look after the joint children and has not pursued a career but has contributed to joint finances with income from a part time job. Despite the fact that the husband has contributed financially much more to the marriage than the wife, the court may decide to allocate a greater percentage of the joint assets to the wife than the husband. This may be due to a consideration that she would find it harder to earn the same money as her husband after separation because she hadn’t pursued a career due to her role as a homemaker.
In conclusion, Massachusetts, like most other states in the U.S., is an equitable division state that uses a complex formula for deciding how marital assets are divided on divorce if a court has been asked to make that decision.
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