When spouses divorce, they must address a number of matters related to the termination of their marriage. One of those is the division of marital property. If you are in the process of separating from or divorcing your husband or wife, it’s important that you understand the rules that apply to property division. You should also retain an experienced family lawyer who knows how to argue for the most advantageous outcome. Find out why so many clients count on LaFountain & Wollman P.C.
The Basics of Property Division in Massachusetts
Property that is acquired and income that is earned during marriage is subject to an equitable distribution at the time of divorce. “Equitable” means fair, not necessarily equal. Unlike community property states, therefore, a spouse is not guaranteed an even 50/50 split of assets. Rather, the Probate and Family Court will apply a number of factors to determine how to equitably distribute marital property. Marital debt is also subject to division.
The court must first determine which property is marital and which is separate, since the court can only divide marital property. In general, separate property includes:
- Property that was owned before the marriage
- Property that was inherited
- Gifts from someone other than the spouse
- Personal injury damages awards
- Property that the spouses agreed, in writing, to treat as separate
There are nuances to these rules and there may be disagreement between the spouses as to whether an item of property (or part of it) is marital or separate. A dedicated family lawyer can help with sorting out these assets.
Some spouses believe that the title on a piece of property or debt is what determines who will be responsible for it after the divorce, but this isn’t the case. For instance, a business may have been started by the husband or wife before marriage. If it continued to exist during the marriage, the other spouse may have a partial claim to it. Similarly, with debt, if it was incurred after the marriage it doesn’t matter whose name was on it. The court can examine several factors to decide how to most equitably divide it.
Which Factors Do Courts Use To Divide Marital Property and Debt?
When determining how to split marital assets and debts, the court will examine various criteria to arrive at what it believes to be the most equitable division. Those factors are:
- The length of the marriage
- The ages of both spouses
- The conduct of both spouses during the marriage (for instance, if one spouse spent marital assets to have an affair, that may affect the outcome of property and debt division)
- The health of both spouses
- Each spouse’s occupation, job skills, and potential employability after the marriage ends
- The estate of both spouses
- The liabilities and needs of both spouses
- The opportunity for future acquisition of capital assets and income
- The needs of the dependent children of the marriage
- Other relevant factors
Will My Property Division Case Go To Court?
Divorce is naturally stressful, even in the best of circumstances. But it doesn’t have to be contentious, drag on indefinitely, or cost a fortune. If you and your spouse are amenable to working out your differences, you may be able to resolve property and debt division (along with other divorce issues) in family law mediation.
During mediation, the spouses and their attorneys meet with a neutral third party mediator to discuss how to divide their marital assets and liabilities. The mediator doesn’t make decisions for either spouse and has no stake in the outcome. Rather, this individual applies his or her legal experience in explaining how a judge may decide their property division case if it goes to trial.
As the spouses discuss the case with the mediator, settlement proposals and counter-proposals will be made. The goal is to reach an out-of-court agreement that makes both spouses happy and avoids the risk that the judge may issue a court order that neither likes. To that end, your attorney will help you weigh the benefits of settlement versus the risks of going to court. Your lawyer will also explain the legal consequences of terms that you may propose or which may be proposed to you.
If a settlement agreement can be reached, it will be submitted to court for the judge’s review. An attorney can help draft the agreement so it is comprehensive and more likely to be approved. If the judge does approve it, the agreement becomes enforceable as a court order. Mediation can save time, money, stress, and it can allow the spouses more control over the outcome of their property division.
Contact Our Middlesex County Division of Property Attorney
The legal team at LaFountain & Wollman P.C. can advocate for the most advantageous results in your property division and other family law issues. If mediation is possible, you may be able to resolve the matter much more quickly than waiting for trial. But if a trial is necessary we will argue for a property and debt division that is fair to you and protects your interests. To learn more about property division, contact us today.