Massachusetts Divorce: Dividing Property

When we think of hot-button issues in a divorce, the usual suspects are alimony or child custody. But dividing a couple's property can also be a big source of conflict, especially when it comes to things like deciding who gets the marital home or even the family pet. If you're facing or in the midst of a divorce, it's important for you to understand how Massachusetts's divorce law addresses the division of property and allocation of debts.

Is Massachusetts a Community Property State?

No, Massachusetts isn't a "community property" state. Rather, it's guided by the principle usually known as "equitable distribution."

In community property states, judges typically divide a couple's property equally (although some states have exceptions). With equitable distribution, judges divide a couple's property and allocate their debts based on what's fair under the circumstances of each case—which doesn't necessarily mean a 50-50 split.

At the core of equitable distribution is the concept that marriage is a partnership. Thus, assets and debts should be divided when the partnership ends, taking into account each spouse's contribution. For example, if a spouse was primarily a homemaker and took care of the children, those activities have value. That spouse shouldn't get shortchanged on property division just because the other spouse was the primary breadwinner.

Characterizing Property Subject to Equitable Distribution in Massachusetts

In most states, determining what property will be included for distribution boils down to figuring out which assets are "separate" property and which are "marital" property. Typically, most assets acquired during the marriage are marital, while assets acquired before the marriage (as well as gifts and inheritances received during the marriage) are separate property. The distinction is significant because, as a general rule, judges may divide marital property between the spouses, but not separate property.

Massachusetts, however, has opted to make all property owned by the spouses—no matter when or how it was acquired—subject to distribution in divorce, thus eradicating the distinction between marital and separate property in that regard. (Mass. Gen. Laws ch. 208, § 34 (2023); Pfannenstiehl v. Pfannenstiehl, 55 N.E.3d 933(Mass. 2016).)

How and When Is Property Valued in a Massachusetts Divorce?

When you file for divorce in Massachusetts, you and your spouse must file and exchange financial statements with complete information about your income, expenses, debts, and assets—including the current value of the assets. That's why it pays to prepare your financial information before the divorce process starts.

In many cases, determining an asset's value is fairly straightforward, such as obtaining the balances on bank accounts. But with certain types of property (like a house, family business, or retirement accounts), you'll probably need help from financial experts—such as appraisers, forensic accountants, or actuaries.

If you and your spouse can't agree on the value of any particular asset, even after getting expert help, the judge may have to decide for you, based on the evidence you both provide.

The date for assigning a value to an asset (or debt) is very important. Unlike most states, Massachusetts doesn't provide a set time for valuing property and debts. Rather, judges have the latitude to determine valuation dates they believe are fair in each case. (Caffyn v. Caffyn, 872 N.E.2d 811 (Mass. Ct. App. 2007).)

In divorces that go to trial, the value of a couple's assets are typically determined as of the trial date. But if the circumstances warrant it, a judge might use a different valuation date, such as when one spouse filed for divorce. A judge might also use the spouses' separation date for valuation purposes, especially if the divorce takes place a long time after the couple separated.

Of course, if you and your spouse reach an agreement on dividing your property (more on that below), you can choose any date for setting a value on your assets and debts.

Can You Agree on How to Divide Your Property?

You and your spouse always have the option of agreeing on how you'll split up your property when you get divorced, rather than having a judge decide for you. In fact, the courts strongly encourage divorcing couples to settle all their marital issues before a trial is necessary, and they provide the opportunity to do that during the divorce process. You'll need to submit the agreement to the court for approval, but judges will almost always approve these agreements as long as they appear to be fair.

Also, if you and your spouse reach a complete marital settlement agreement before you file your divorce papers—covering all the legal issues involved in ending your marriage—you'll be able to file for an uncontested divorce in Massachusetts. Uncontested divorces are much cheaper, quicker, and easier than traditional contested divorces. Many couples are able to navigate the uncontested divorce process without hiring a lawyer, either entirely DIY or by using an inexpensive online divorce service to streamline the process.

You can also agree before you get married (by signing a prenuptial agreement) on how you'll divide your property if you later decide to divorce. This takes on added significance in Massachusetts, because your pre-marital property is fair game for distribution in divorce.

How Do Massachusetts Judges Decide What's Fair When Dividing Property?

Under Massachusetts law, judges must consider certain factors when they're deciding how to divide a couple's property, including:

• the length of the marriage
• the spouses' conduct during the marriage
• the spouses' ages and health
• the amount and sources of each spouse's income
• the spouse's vocational skills and employability
• the spouses' assets, liabilities, and needs
• each spouse's opportunity to acquire capital assets and income in the future
• the amount and duration of any alimony awarded in the divorce, and
• the present and future needs of the dependent children of the marriage.

Judges may also consider:

• each spouse's contribution to the family unit as a homemaker, and
• each spouse's contribution to the acquisition, preservation, or appreciation in value of their respective assets.

(Mass. Gen. Laws ch. 208 § 34 (2023).)

Allowing consideration of the spouses' contribution means that even though premarital assets are up for distribution in the divorce, the judge might decide that the spouse who initially acquired that asset should keep it, based on the circumstances of the case. For example, say a wife owns a one-third interest in a house that's been in her family for generations. She and her spouse don't live in the house, and she only uses money from an inheritance to help her siblings maintain the home. Under those circumstances, a judge might decide that she shouldn't have to share her interest in the house with her spouse.

The bottom line is that just because judges may distribute an asset, that doesn't mean they must do so.

Note also that the list of mandatory considerations includes the spouses' conduct. But Massachusetts courts have held that this doesn't mean bad behavior in general. Rather, judges will consider only misconduct that has had a negative impact on the marriage or the couple's assets. For instance:

• When a spouse has squandered ("dissipated") a significant portion of the couple's assets (such as through gambling losses), the judge may award a greater portion of the remaining assets to the other spouse—depending on the circumstances.
• In one case when a wife was convicted for soliciting her husband's murder, the court found that the judge could take that into consideration when dividing the couple's property, because her actions meant that her husband had to take on full responsibility for their children's care and diminished his ability to focus on his work.

(Kittredge v. Kittredge, 803 N.E.2d 306 (Mass. 2004); Wolcott v. Wolcott, 939 N.E.2d 1180 (Mass. Ct. App. 2011).)

Who Gets the Family Home in a Massachusetts Divorce?

Massachusetts law doesn't specify who should get to keep the family home after divorce. As such, the house is just another asset subject to equitable distribution.

If you and your spouse can't agree on what to do with your house, the judge will make a decision based on the specific circumstances in your case. If a house is awarded to one spouse, the judge will typically award different assets—such as retirement accounts—to the other spouse to arrive at a fair distribution of all the couple's property.

Of course, many couples don't own enough other assets to balance out the value of a house awarded to one spouse. So the judge may simply order them to sell the house and divide the proceeds. If you don't want a forced sale, you'd be wise to work out an agreement with your spouse after exploring the other options for dealing with the family home.

What About Dividing 401(k) and Other Retirement Accounts?

Retirement accounts are also part of property division in divorce. Valuing these accounts can be very complex, which is why you almost invariably need the services of an actuary or an attorney trained in these types of calculations.

And when you're dividing employment-related retirement plans, such as a 401(k) or a pension, you'll need an expert to prepare a special order for the plan administrator, known as a qualified domestic relations order (QDRO).

Who Gets the Family Pet in a Divorce?

Even though pets often seem like members of the family, the law considers all animals to be property. As such, they're subject to distribution just like a car or furniture. Unlike a few other states, Massachusetts law doesn't specifically allow judges to take into account the animal's well-being or to award joint custody of a pet. Still, when empathetic judges are deciding who gets the pet in the divorce, they will often consider the impact of their decision on members of the family, especially the children.

Getting Help With Your Divorce and Property Division

If you're having trouble agreeing with your spouse about how to divide your property, you can try mediation. The cost of divorce mediation varies, but you and your spouse can split the mediator's fee. And a successful mediation will be considerably less expensive than going to trial (with attorneys' fees for both of you).

But if you still aren't able to reach a settlement agreement, even with a mediator's help, you should at least speak with a lawyer. An experienced family law attorney can evaluate your case and lay out your options going forward. Having a lawyer on your side is especially critical if you're experiencing domestic violence in your marriage or if you suspect that your spouse is hiding assets.

You should know that the question of whether you need a divorce lawyer isn't always an all-or-nothing choice. Sometimes, you can hire an attorney on an as-needed or consulting basis to handle certain tasks in your divorce, such as drafting or reviewing your settlement agreement, to make sure you haven't missed anything important or inadvertently given up important rights.