A property attachment is a possibility during divorce: either spouse under Massachusetts divorce laws may attach the other spouse’s real and personal property to ensure suitable support for the attaching spouse and children in his/her care and custody[1].
For example…
Consider Betty and Bob, who made their marital residence a ranch home Bob purchased in his name before their union. When the marriage dissolved, Bob tried to sell the home; this was despite a restraining order that prohibited him from putting the home up for sale. In such a scenario, a writ of attachment filed in the Registry of Deeds of the county in which the couple resides will notify any would-be buyer that title to the property is not clear because of pending litigation. This includes Betty’s spousal lien, which preserves her rights to distributable property in the separation agreement.
A writ of attachment, signed by the applicable Probate Court clerk under the Commonwealth court’s seal, must include the following information:
- the parties’ names and residences;
- the divorce complaint date;
- the name and address of the plaintiff’s attorney, if any; and
- the name of the justice granting the attachment and the approval date[2].
The writ directs the applicable county sheriff or deputy, or other individual duly authorized by law, to attach the defendant’s targeted real or personal property in the court-approved amount and return the process to the court.
How does it work?
The spouse seeking the property attachment must file the complaint for divorce, along with a motion for attachment backed by an affidavit containing facts based on the spouse’s own knowledge or belief. The defendant spouse must be given notice of the application for the attachment, which, after hearing, a justice may grant only after finding “a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment[3].” Attachment must be made within 30 days of the writ’s approval.
A property attachment may be made by a court-ordered injunction that would enable a party to attach in equity stock shares and other property unreachable in actions at law. Alternatively, attachment may be made by the trustee process, under which service of a summons is made on a trustee notifying the trustee to attach designated goods, effects and credits of the defendant in the trustee’s hands[4].
Other methods:
Another form of encumbrance is a lis pendens, whereby a party makes a claim of right to title to real property or its use and occupation. If, after a hearing, a judge approves the motion, a memorandum is filed in the appropriate registry of deeds identifying the court where the case is pending, the date of the writ, and a description of the property and town where it is located.
Attachment of property in a divorce action may also be made by a counterclaim, cross-claim or third-party complaint. The rules allow one party to seek an attachment “ex parte.” A court must find reasonable likelihood of recovery by the plaintiff and circumstances such as not having jurisdiction over the defendant spouse or evidence that the defendant will destroy, conceal or try to unload the targeted property if notified in advance of the attachment action.
Contact us:
Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? If you have any questions about issues of divorce or property assignment, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
[1] M.G.L. c. 208 §12; Mass. Dom. Rel. Proc. Rule 4.1 (a).
[2] Mass. Dom. Rel. Proc. Rule 4.1 (b).
[3] Mass. Dom. Rel. Proc. Rule 4.1 (c).
[4] M.G.L. c. 208, §13; Mass. Dom. Rel. Proc. Rule 4.2.