Massachusetts has long adopted the equitable distribution approach to property division in divorce. Equitable distribution is the most popular approach in the United States, with a primary focus on achieving “equity” or fairness. How fairness is determined, however, varies to some degree from state to state. Massachusetts gives the probate and family judges arguably the most discretion in distributing in the state.
Massachusetts Statutory Law
Mass General Law 208, Section 34 establishes property division. The statute says, “The court may assign to either her husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage.”
The statute then goes on to detail a nonexclusive list of asset types included in the marital estate. This essentially creates an extremely broad interpretation of “marital estate”. The statute further provides various factors the court may consider in determining what would be a fair or “equitable” distribution of the estate. While in many marriages, the court distributes an equal distribution to each spouse, the court has broad discretion in determining what it gives to each spouse.
There are two conflicting but important interests at play in the formation of the statute. On the one hand, as a society, we recognize that every situation is different. The less flexibility and discretion, the more opportunity there could be for one party to exploit the law to his or her unfair benefit. So, we give a tremendous amount of discretion to the family law judge. Doing so establishes a common-sense check in the system.
The opposing argument to this also has merit. That is, because there is so much discretion in the probate and family judge’s hands, the spectrum of what might happen at trial is so great that it becomes very difficult to settle cases. What might happen at trial becomes simply too speculative to define.
Factors in Determining an Equitable Result
There are, however, factors that the court must consider in determining an equitable result. The court must consider the length of the marriage and the conduct of the parties during the marriage. Each parties’ age, health, and station are also considered. Additionally, the court considers the parties’ respective occupations, amounts and sources of income, vocational skills, employability, and estate. The liabilities and needs of each party are also taken into account. The court can even consider the opportunity of each spouse for future acquisition of capital assets and income. This means the court can consider potential inheritances. We were recently reminded of this in the Pfannenstiehl case.
Property Division in Plain English
So, between leaving discretion with the court and reining that discretion in with more clearly defined statutory language, the court’s discretion wins in Massachusetts. How does property division work in plain English? The court first determines what is in the marital estate. This is likely — but not necessarily — everything that the parties own. The court then considers essentially every possible factor that impacts the parties’ financial world now, and that which may impact it in the future. The court next orders an equitable distribution. This distribution may or may not be equal.
Yes, the law is a bit wishy-washy. Accordingly, resolving your case may be difficult and you may wonder if you’ve left a lot of money on the table. Nonetheless, parties resolve their cases the vast majority of the time, especially considering that the litigation costs of a trial can be cost-prohibitive. And, it should be noted that, even when there is a broad spectrum of what could happen at trial, the parties both have a reason to compromise.
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