All divorcing couples must divide their marital property and assign marital debts as part of the divorce process. Massachusetts law requires the division of property in a divorce to be equitable, meaning that it must be fair, though not necessarily equal. Some couples are able to agree on their own about how to divide property, while others seek the help of attorneys or a mediator to help them negotiate a settlement. Couples who don’t manage to resolve property issues on their own will end up going to court to ask for a decision from an arbitrator or a judge.
While only property that a couple acquires during marriage is “marital property,” Massachusetts law allows a judge to divide all of a couple’s property in any manner that seems fair, regardless of when it was acquired or which spouse actually owns it--in other words, the judge can divide both marital and separate property. However, a court will usually, but not always, award separate property to the original owner in a divorce--separate property is property one spouse owns before marriage, or acquires by gift or inheritance during the marriage.
It can sometimes be hard to determine what property is marital and what is separate. Marital and separate property can become mixed together—sometimes called “commingling.” A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage or other expenses, or contribute to significant improvements. If spouses aren’t able to decide what belongs to whom, the judge will have to decide whether to treat any of the commingled property as premarital property belonging only to one spouse.
A couple making their own agreement can divide assets in whatever way they see fit. Some couples have a premarital agreement defining property as separate or marital; if there is a prenup, it can make dividing property much easier.
The spouses—or the court if the spouses can’t agree—generally assign a monetary value to each item of property. Appraisals can help a couple determine the value of real property as well as items like antiques or artwork. Retirement assets can be very difficult to evaluate and may require the assistance of an actuary, C.P.A., or other financial analyst.
Spouses can divide assets by assigning certain items to each spouse, or by selling property and dividing the proceeds. They can also agree to hold property together. Most couples don't do this, because they want a clean break rather than an ongoing financial entanglement, but there are some circumstances where it makes sense. For example, some couples agree to keep the family home until children are out of school. Others may keep investment property that is at a low ebb, hoping it will increase in value.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans, and credit card debts, to one spouse or the other.
If the couple can’t agree on how to divide property and debts, a judge will decide, taking into account each spouse’s:
Other factors a judge will consider include the length of the marriage; the present and future needs of any dependent children of the marriage; and any spousal misconduct that caused the breakdown of the marriage. Courts are especially likely to consider misconduct that resulted in the waste or dissipation of marital assets available for distribution (gambling, for example, or giving away large amounts of money without the other spouse’s consent). A court may also consider each spouse's contributions to the acquisition, preservation, or increase in value of their respective estates, and either spouse's contributions to the family unit as a homemaker.
There is no fixed formula for determining what is equitable; every case depends on the individual facts and circumstances. In general, the shorter the marriage, the more likely a court will be to try to put the parties back into roughly the same situations they were in prior to the marriage; in a very long marriage, the court is more likely to order a roughly equal distribution of property and to ensure that both spouses can maintain a standard of living similar to what they had during the marriage.