The Legal and Financial Aspects of Divorce in Massachusetts

This article provides an overview of the legal and financial aspects of divorce in Massachusetts.

Fault Versus No-Fault Divorce

Massachusetts recognizes both “fault” and “no-fault” divorces.   In both types of divorce, you need to identify a specific reason for the breakup in your initial divorce paperwork. The difference is that in a “fault divorce,” the reason for the divorce is based on your spouse’s fault or misconduct. In other words, you will allege and show that your spouse did something which led to the divorce. The fault grounds in Massachusetts are:

  • adultery
  • impotency
  • desertion for one year before the divorce
  • drug or alcohol abuse, and
  •  cruel or abusive treatment, or cruel refusal to provide support to the other spouse.

In a “no-fault” divorce, there are no allegations of bad behavior; you can end your marriage based on “irreconcilable differences,” which is just a fancy way of saying that you and your spouse don’t get along anymore, and there is no real chance of reconciling. A no-fault divorce allows you to end your marriage without airing your dirty laundry in court.

(See Massachusettts Divorce and Family Law to learn more details about the divorce process.)

Division of Property in Massachusetts

Spouses can Divide Property on Their Own

At the start of a divorce, many spouses wonder how property will be divided between them. First, you can enter into an agreement directly with your spouse about the division of property. If you and your spouse are able to reach a mutual agreement, you can memorialize that in a written document, called a “property settlement agreement” (PSA). You then submit the PSA to a judge so it can be incorporated into your final divorce decree.

If you and your spouse can’t agree, you’ll have to head to court, where a judge will divide property using the principles of “equitable distribution.”    

Massachusetts Courts Divide Property Equitably – not Necessarily Equally

In Massachusetts, courts may divide “marital” property equitably (fairly) between the spouses upon divorce. Marital property includes any income, assets, and property acquired by either spouse during the marriage. It does not include any “separate” property, which is all income, property, and assets acquired before the marriage. Separate property stays with the spouse that acquired it, and is not divisible by a court.

Courts will divide marital property equitably, which means in a way that they believe is fair under the circumstances.   Courts consider several factors when making this decision, including:

  • the length of the marriage
  • the age and health of the spouses
  • each spouse’s income, education, and past, current, and future employment (earning ability)
  • each spouse’s contributions to the acquisition, preservation, and appreciation of assets
  • the spouses’ station in life during marriage
  • conduct during the marriage
  • current and future incomes and financial needs
  • current and future property interests
  • either spouse’s contributions as a homemaker, and
  • the unmet future needs of children.

Although courts seem to divide assets more or less equally, they do make exceptions, for example, in cases involving misconduct that had a financial impact on the family. So, if one spouse spent thousands of dollars in marital property on gifts for a lover, a court may award the “innocent” spouse a greater share of the marital property.

Alimony in Massachusetts

There are no set guidelines for alimony (also called “spousal support” or “maintenance”). Whether to award alimony, how much to award, and for how long is all left to the discretion of the court after an analysis of several factors, including:

  • the length of the marriage
  • each spouse's income, skills, and employment opportunities
  • each spouse’s current obligations (debts) and potential financial needs
  • each spouse's age and health
  • the present and future needs of any children of the marriage, and
  • conduct during the marriage, such as adultery, abuse, or abandonment.

For more information about alimony in Massachusetts, see Understanding and Calculating Alimony in Massachusetts, by Desiree Howard.

Child Custody

If parents can’t agree on custody and visitation, a court will decide all custody issues, including:

  • physical custody – who the child will live with and when.
  • legal custody – who will have the authority to make important decisions affecting the child’s health, education, and welfare.
  • sole versus joint custody – whether physical and/or legal custody will be shared equally (“joint custody”), granted primarily to one parent (with some limited rights to the other parent), or granted solely and exclusively to one parent, with no rights granted to the other.

Judges must make these decisions by determining what custody arrangements will be in the “best interest of the child.” Courts will consider various factors to determine a child’s best interest including the child’s mental, physical, and emotional health and welfare, and the child’s adjustment to home, school, and community.

See Child Custody in Massachusetts:   The Best Interests of the Child, by Susan Bishop

Child Support

In Massachusetts, both parents (whether married to one another or not) have a legal obligation to support their children. The child support amount is determined according to a formula outlined in the Massachusetts child support guidelines. In fact, every state has its own child support guidelines. Although the Massachusetts version is fairly straightforward, crunching these types of numbers can be confusing.

If you have questions about child support, you should contact an experienced family law attorney for help.  

Imputing or Attributing Income

Unfortunately, when faced with the prospect of making child support payments, some parents may intentionally begin earning less income, or even voluntarily quit a job. Spouses may also do this in order to avoid paying alimony. However, this is a very bad idea, because this behavior is not likely to be tolerated by a court.

If a court finds that a spouse or parent is voluntarily underemployed or unemployed, the court may “impute” (attribute) income to that spouse. The imputed income will be based on what that spouse could be earning considering education, training, job history, experience, and local job opportunities.

What about a Prenuptial Agreement?

As long as they are fair and reasonable, prenuptial agreements can be used in Massachusetts to govern the rights and responsibilities of married people with respect to alimony and the division of property.

However, courts are not likely to uphold provisions of a prenuptial agreement that deal with child-related issues such as child custody and support. First, child support is due to the child, not the parents; parents can’t agree between themselves, in advance, to limit child support owed to their children.   Moreover, a prenuptial agreement may not take the child’s best interests into consideration. Thus, courts have continuing jurisdiction (authority) to make child custody and support orders at the time of the divorce, without reference to any prior agreements.  

Should I Hire a Lawyer?

Family law can be a very complicated area of the law, especially when dealing with the financial aspects of a divorce. You may have questions that only a professional can answer. At a minimum, you should hire an experienced attorney to review any proposed property settlement agreement and ensure that your rights are fully protected.

If you and your spouse can’t agree on the issues in your divorce case, you’ll probably end up in court; there, you’ll definitely want to have a family law attorney that is familiar with the rules of court, on your side.  

Resources

For more information about child support, including how to apply for child support in Massachusetts  click here for the Child Support Enforcement Unit (CSE) of the Massachusetts Department of Revenue (DOR) website.

For online access to information about the Massachusetts Probate and Family Courts, click here.

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