If you are going through a divorce, there are two particularly difficult decisions to be made by you and your spouse.
If you have children who are still dependent on you, you have to think who they are going to live with, how each of you can have quality time with them and who pays for what they need to live healthy and productive lives until they are capable of fending for themselves. If you don’t have joint children or they have already left home, you have less to think about but it can still be problematic. You have to decide how you divide the assets you both own, either jointly or individually.
The Probate and Family Law Court does not have to make a decision for you. If you can come to an amicable agreement between the two of you and make decisions which you can both agree on, even if they aren’t perfect, then this is by far the best option. The court is only used when you can’t agree how to divide your property (or decide how to look after your dependent children, but that’s the subject of a separate article!)
Even if you do come to what you believe is a reasonable agreement about who keeps the family home and all the other assets you both own, you may still have to get the agreement made up formally and present that to the court when you file for a divorce. It is advisable, although not strictly necessary, to hire a divorce lawyer to help you go through your finances and devise a way of deciding your assets in a way which is acceptable to both of you.
What happens when you cannot agree on how to divide property?
In Massachusetts, the court will decide how your property should be divided if you cannot come to an agreement yourselves. The state is what is called an ‘equitable distribution’ state. This term is confusing for some people, as it implies it means that a couple’s assets are divided equally between them on divorce by the court. In fact, ‘equitable’ does not necessarily mean ‘equal’. It means ‘fair’. The court will assess a whole bunch of criteria before coming up with a plan for dividing your property based on what the court decides is the fairest way of doing that.
In Massachusetts, when the court assesses your assets before deciding how they should be divided ‘equitably’, it doesn’t just look at your jointly owned assets, i.e. the assets you have acquired together with your spouse during your marriage. It also looks at the assets of each individual spouse and even the assets each spouse owned before the marriage, including inheritance. This is a different way of doing things than in other states where marital assets for division are only those that are jointly owned. In these states, individual assets owned by each individual spouse before marriage as well as inheritances acquired at any time are usually excluded from court ordered property division on divorce.
Criteria the court uses to decide what an equitable division of property is
The court uses a number of factors before deciding what an equitable division of property is. These include, but are not limited to the following factors:
- the length of the marriage;
- the ages of the two spouses;
- the health of each spouse;
- the income that each spouse has contributed during the course of the marriage;
- the income potential of each spouse after the divorce;
- who will be the primary caregiver for any dependent children;
- the time that one or the other of the spouses may have contributed to looking after the home and children while not employed during the marriage;
- any individual property owned by either spouse, including real estate, vehicles, stocks, trusts, inheritances and acquired gifts, cash held in bank accounts;
- the conduct of each spouse during the marriage, such as financial responsibility or irresponsibility.
Examples of ways a court may consider a property division equitable
Bearing in mind that the court in Massachusetts will consider assets acquired before marriage, individually owned property, including inheritances for division, it may still consider it equitable when:
- the spouse who has contributed more during the marriage may get a larger share of the assets when divided;
- a spouse who wasn’t employed, yet spent time home keeping and caring for children at home may be given a fair share of the marital assets because of the non-economic contribution that person gave during the marriage;
- infidelity may not be considered by the court, but financial irresponsibility may be, e.g. if one spouse or the other has wasted joint assets or defrauded the other spouse. If this has happened then this spouse may receive a smaller share of the marital assets.
Property division orders
Once the court has come to a decision about property division on divorce, it issues a property division order. This court order is a binding legal document which must be complied with by the two spouses. This is similar in terms of its legal significance as a child custody order which determines how dependent minors are cared for after a divorce. If one or other spouse fails to comply with a property division order then this may be regarded as contempt of court and could face charges. If this is something that has happened to you after a divorce, then you should seek legal representation by a divorce lawyer.
For more information, visit our website Mucci Legal or contact us for a free initial legal consultation today.