Property Division – Equitable Distribution

Property Division: Equitable Distribution

Property Distribution and Assignment

Every Massachusetts divorce has the elements of property division (or equitable distribution). That means, in every case, there must be some analysis of the marital estate, the value of marital property and debt, and who ultimately gets what.  A common misconception by parties with relatively short marriages is that, because they largely kept their finances separate, they don’t have any marital property. That’s incorrect.

Marital Property

Under Massachusetts law all property of both parties in the divorce is marital subject to equitable distribution. Regardless of the length of the marriage or how intermingled the assets, when you get divorced in Massachusetts, unless you have agreed otherwise in a prenuptial agreement, all your property and debt is marital.  That may cause joy for some parties and despair for others, but regardless of which end of that spectrum you lie, the idea is that fairness will prevail in the end.

Divorce law is almost exclusively state law, so there are differences from one state to another. Many states exclude certain types of property and characterize them as non-marital assets. Commonly, inheritances and gifts would fall into that category. However, in Massachusetts, all of the property is in the marital estate, regardless of how it was acquired.

Equitable Distribution

Massachusetts has adopted the equitable distribution approach to property division in divorce. While not every state follows this approach, the majority of states do. Equitable, in this sense, essentially means fair. That is, the court will seek to have the property (and debt) be divided up in a fair manner, given the circumstances.

Factors Used in Dividing Property

The result of this broad definition of marital estate is that the judge has wide discretion in determining the proper outcome. The approach makes logical sense and helps to dissuade parties from avoiding marital classification of assets to fair better in the divorce. The only way parties can keep assets from being part of the marital estate in Massachusetts is by not owning them. So, in crafting a proper equitable distribution scheme, the judge, and therefore the parties and the lawyers, should consider all other facts and circumstances of the case.

To aid everyone involved in doing so, there are specific factors, set forth in Section 34 of M.G.L. Chapter 208 that must be considered. The mandatory factors include the following:

  • the length of the marriage
  • the conduct of the parties during the marriage
  • the age, health, station of the parties
  • occupation of the parties
  • amount and sources of income
  • vocational skills and employability of the parties
  • estate, liabilities and needs of each of the parties
  • the opportunity of each for future acquisition of capital assets and income, and
  • the present and future needs of the dependent children of the marriage.

Having experienced lawyers involved is particularly helpful in determining the proper weight to be given to the factors present in the case.

Valuation of Assets

Valuation of assets can be a challenging component of equitable distribution.  Smaller estates have less issues here, often with vehicles or a marital home being the only assets with uncertain values.  When that’s the case, values can usually be agreeably determined by the use of a real estate appraiser or objective resource, such as Kelly Blue Book or NADA.  The issue can become more complicated in divorces with closely held businesses or complex investments and/or estate planning at play.  There are best practices for determining the value of every asset, and it’s important to obtaining a fair result to take the proper approach.

Ultimately, all assets and liabilities will be valued and each party will have an opportunity to present a proposed equitable distribution schedule to the other and to the judge for consideration, the final determination of which will generally be permanent and nonmodifiable.