Ellen and Earl have been married for more than twenty years, making the age of the parties more relevant in a divorce. During the marriage, Earl worked full-time as an engineer, while Ellen stayed home to care for the parties’ two children. Ellen, who has a high school education, went back to work part-time at a retail store once the kids learned how to drive.
However, Earl’s recent Complaint for divorce has thrown Ellen for a loop. She has few skills that would make her employable—on top of that, she is in her fifties and worries about attempting to go back to work full-time. Ellen wonders if her age will have anything to do with how the Court will divide the marital property. Will the Court consider her plight in allowing her to keep her marital home, for example?
The Massachusetts Probate and Family Courts use a process called equitable distribution to divide marital property in general. Here, the term “equitable” means “fair,” and not necessarily equal: the court will determine how to best divide marital property in the fairest manner in each particular case. There are many factors that the Court considers as part of this process, and one of those factors is the age of the parties, together with other factors such as employability.
Typically, the older the parties are, the more important their age becomes when factoring it into the Court’s decision regarding assignment of the marital estate. In particular, if one party is elderly and has devoted a large part of his or her life to homemaking, and if the couple had a long-term marriage, then those factors coupled together will pose an important consideration for the Court. By contrast, if the couple is fairly young, with good prospects for employability, and had a fairly short marriage, then the age of the parties will become a much less important factor in dividing property.
In one case, the Appeals Court considered the advanced age of the wife (in her sixties) who had stayed home with the children, ran the household, and assisted the husband in his medical practice during a 36-year marriage. The Court held that the wife was unlikely to become financially independent, and that the trial court’s decision to award alimony and property to the wife was fair and equitable.[1]
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[1] Serino v. Serino, 6 Mass. App. Ct. 926 (1978).