DIVISION OF

PROPERTY

In divorce actions, the court has a mandate to divide the parties' property. Property means everything that is owned by either of the parties, whether jointly or separately. (This does not fully apply if there is a prenuptial agreement in place.)

 

Examples of property that can be divided by the court:

 

  • Real estate

  • Businesses

  • Bank accounts

  • Mutual Funds

  • Retirement accounts and pensions

  • Automobiles

  • Beneficial interests in trusts

  • Stock options, whether earned before or during the marriage

  • Proceeds of lawsuits, whether or not concluded

  • Debts owed to a spouse

 

The Court, while dividing assets, is also charged with dividing liabilities, so that credit card debt and other debt can be assigned to one spouse or the other in varying amounts, depending on a number of factors.

 

How the Court divides property
Property division in a divorce is an area where there is great discretion in the Court. There are a series of factors set out in a statute, known as Massachusetts General Laws, Chapter 208, and Section 34. Lawyers and judges know it as, "section 34." The section 34 factors used to divide assets and debts are these:

 

  1. Length of the marriage

  2. Conduct of the parties during the marriage

  3. Age of the parties

  4. Health of the parties

  5. Station of the parties

  6. Occupation of the parties

  7. Amount of income of the parties

  8. Sources of income of the parties

  9. Vocational skills of the parties

  10. Employability of the parties

  11. Estate of the parties

  12. Liabilities of the parties

  13. Needs of the parties

  14. Opportunity of the parties to acquire future capital assets

  15. Opportunity of the parties to acquire future income

  16. Contribution of the parties in the acquisition of their estate

  17. Contribution of the parties in the preservation of their estate

  18. Contribution of the parties in the appreciation in value of their estate

  19. Contribution of the parties as a homemaker to the family unit

  20. Present and future needs of dependent children of the marriage.

 

How the factors are weighed
Here is the mysterious part. The court can weigh the factors as it wishes, giving more weight to some factors, less to others. As long as the court actually considers all the factors, its decision will not be overturned on appeal. The only exception is where the court makes a decision so far from established decisional law that it is considered an "abuse of discretion."

 

There are some general guidelines set out in the decided law cases from the Appeals Court and Supreme Judicial Court of Massachusetts, which will be mentioned below.

 

Having said this, it is up to experienced counsel to argue the various factors to the court and to urge the court to give more or less weight to particular ones, depending on the facts of the case. Understanding the interplay of the factors takes much reading and experience. The identification of specific facts that bear upon one or more factors is key and understanding what a reasonable division of assets should be.

 

Length of the marriage is a very important factor in dividing property. The longer the marriage, the more, in general, the parties have each made substantial contributions to the marriage, both financial and "in-kind". In a lengthy marriage, say over 15 years, the Court begins its analysis with an assumption that the parties are entitled to an equal division of property, and then it is up to counsel for either side to sway the judge one way or the other by making arguments concerning the factors. In short marriages, the court tends to return to each party what each contributed to the marriage.

Contribution to the marriage is also a most important factor. Whether a party came to the marriage with millions or with inherited property; whether that property was in one spouse's family for generations; whether one party earned more of the income during the marriage; whether the other party made offsetting contributions such as primarily raising a child; these are all matters a judge takes into account when dividing property.

 

Some of the other questions which arise, and which bear on the division of property are:

 

  • Whether one spouse will, in the future, earn far more money than the other;

  • Whether one spouse will, in the future, likely inherit more money than the other;

  • Whether one spouse has "dissipated" or wasted assets during the marriage, as by gambling;

  • Whether a spouse diverted assets, so as to hide them from the other;

  • Whether a spouse supported the other through medical or dental school, or through some other education;

  • Whether a spouse's physical or mental health will likely prevent that person from earning substantial sums;

  • Whether property to be distributed is income property, such as rental real estate;

  • Whether one spouse increased the marital property substantially after the parties separated.