Sam and Sally are going through a divorce. For years, Sam worked outside of the home while Sally stayed home to care for the couple’s children. Sam was responsible for the acquisition of most of the couple’s property. He now wonders whether the court will consider his contributions in deciding how to divide the marital property. Conversely, Sally wonders if her contributions as a homemaker will be considered by the court.

In short, both parties’ individual contributions will be considered in this situation. 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 best to divide marital property in the fairest manner in each particular case. There are many factors that the court considers as part of this process, most of them mandatory for the court’s consideration and analysis.

In addition to the mandatory factors, the court may also consider some discretionary factors:

• the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates, and
• the contribution of each of the parties as a homemaker to the family unit.

The fact that these factors are discretionary means, of course, that the court does not have to take them into consideration. However, these factors are still important and cannot be ignored by the court in the case of property division.

In one case, where the husband was responsible for the acquisition of most of the parties’ property, the Supreme Judicial Court held that the trial judge property considered the parties’ contributions and the sources of the marital property in dividing it. The Court noted: “an equitable, rather than an equal, division of property is the ultimate goal…To that end, a judge is required to consider the respective contributions of the parties to the marital partnership, and a disparity in contributions may be reflected in the distribution of the inherited and gifted assets. A judge may also consider, as the judge clearly did in this case, the source of the assets, each parties’ role in managing the assets, and whether the assets in question had been kept separate or commingled with the couple’s jointly owned property. In light of these considerations, and in light of her conclusion that the husband’s contributions to the marital estate greatly exceeded those of his wife, the judge’s determination to award the inherited and gifted assets to the husband, while awarding the wife the bulk of the jointly produced assets, was well within her discretion.”

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