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.

Property division is established by Mass General Law 208, Section 34. 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 statue then goes on to list a nonexclusive list of types of assets that would be included in the marital estate, essentially creating 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 and 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 flexible the discretion, the more opportunity there could be for one party to exploit the law to his or her unfair benefit.  We give a tremendous amount of discretion to the family law judge because it establishes a commonsense 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 judges 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.

There are, however, factors that the court must consider in determining an equitable result. The court must consider the length of the marriage, the conduct of the parties during the marriage, each parties’ age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities in needs of each parties.  The court can even consider the opportunity of each spouse for future acquisition of capital assets and income, which means that the court can consider potential inheritances, as we were recently reminded in the Pfannenstiehl case.

So between leaving discretion with the court and reigning 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’s in the marital estate, which is likely but not necessarily everything you own.  The court then considers essentially every possible factor that impacts your financial world now and may impact it in the future.  The court then orders an equitable distribution, which may or may not be equal.

The result of the law being this way is a bit wishy-washy, which can make resolving your case difficult without wondering if you’ve left a lot of money on the table.  But, resolving cases happens the vast majority of the time because the litigation costs required of taking a case to 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.

The best course of action for an individual facing divorce, particularly when there are complex assets at stake such as business interests or trust interests, are to seek the counsel of a competent divorce attorney.  Many do free consultations, including our office. To schedule a free consultation with our office, call 978-225-9030 during regular business hours or complete our contact form here and we will call you when we are back in the office.