Massachusetts is not a community property state. Instead, Massachusetts follows equitable distribution rules, meaning a judge will divide marital property fairly but not necessarily equally.
If you are facing a divorce, one of your primary concerns may be how the court will divide your property and marital assets. As a family law firm in Westborough, Massachusetts, we get a lot of people asking if Massachusetts is a community property state. In a community property state, everything gets divided equally between a divorcing couple.
Under this theory, your marital property will be divided in a manner that the Judge considers a “fair” division, hence the term “equitable.” Because our attorneys have over 35 combined years of exclusive family law experience, we can help you better understand how equitable distribution may apply to your divorce case.
What is the Difference Between Separate and Marital Property?
Unless you have a prenuptial agreement that defines property or assets that you have brought into the marriage as retaining an individual nature that will remain yours in a divorce, everything you own is considered marital property and needs to be divided within your Separation Agreement. However, depending upon the length of your marriage, anything you brought into the marriage may be credited to you in the divorce, which people often refer to as separate property.
For example, suppose you had a money market account in your name of $50,000.00 when you got married, and you haven’t contributed any marital funds (which is anything you earn during your marriage) to that account. In that case, you will likely get that account without giving your spouse any of it within the divorce. The longer you are married, though, the greater the chance the Judge would order it divided.
Another typical example is where one spouse purchased a house using money that he or she had acquired before the marriage toward the down payment. In those cases, and again depending upon the length of the marriage, it’s possible to obtain credit for the value of the separate funds you used to obtain the home. After that credit, the remaining equity would usually be split equally.
Suppose you are entering a marriage with any assets. In that case, you want to ensure that you talk to a lawyer, even if you’re not interested in entering into a prenuptial agreement, because there are ways you can help the assets you bring in retain an individual character that will give them the best chance at being credited to you upon any future divorce. Suppose you bring separate property into the marriage that ends up “comingling” with marital funds. In that case, the argument you may have had about why you should be credited the total amount of the value may be significantly decreased or removed.
Factors That Impact Equitable Distribution
Because Massachusetts is not a community property state, the court will divide a divorcing couple’s property in a manner it considers fair; however, this does not mean that the couple’s assets will always be split equally down the middle. Instead, the Judge will consider various factors when determining the marital property allocation each spouse will receive. The earning capacity of each party, each person’s age and health, each party’s contribution to the asset, and each party’s current economic situation are some factors that the court will consider before making a final decision.
While Massachusetts recognizes both fault and no-fault divorce, allegations of wrongdoing during the marriage also could impact the court’s distribution of the couple’s property. If one spouse has significantly dissipated assets, the innocent spouse may receive a much larger share of the remaining property within the divorce. Our firm represented a Wife where Husband had stopped contributing to their business and utilized a significant amount of money to support his drug and alcohol addiction during the marriage. After a multi-day trial, the Wife was awarded 80% of the remaining assets within the divorce judgment.
What if We Agree on How to Divide Our Property?
Unless one person is not being fair in negotiations or seeking something unrealistic, it is almost always better to agree on how to divide property than to leave the decision up to a Judge. If you and your spouse can agree on dividing property, that is fantastic and should be commended! When there is an agreement, that agreement can be written out and included within the Separation Agreement (otherwise called a Divorce Agreement). Even if there are other aspects you do not agree upon, you could still agree on the property division and enter a stipulation on that issue while preserving any contested issues to bring to the Judge to resolve.
Contact an Attorney for Help With Equitable Distribution in Massachusetts
If you are going through a divorce and have concerns regarding your property division, you must retain an experienced divorce attorney as soon as possible. Because Massachusetts is not a community property state, one of our family law attorneys can work diligently on your behalf to protect all assets you are entitled to and begin to strategize an argument on why you should get what you are seeking based on fairness.
The attorneys at O’Connor Family Law can strongly advocate for your rights during negotiations and within the courtroom if a settlement is not possible. Our attorneys have the experience and skill to help ease your stress during what is often an emotional period so you can worry less about your financial future being protected. Contact our firm today to discuss your case.