Massachusetts Property Division

There is no set formula when dividing marital assets as judges are given broad discretion in making an equitable distribution of the estate. While the trial judge must consider each and every one of the mandatory factors set forth in Massachusetts General Laws (Chapter 208, Section 34), it allows the judge complete discretion as to what weight to assign to each of these factors. This makes it nearly impossible to predict how the marital estate will be divided.

In general, many trial court judges are likely to be in favor of a 50-50 equitable distribution involving a long term marriage in which the wife was the homemaker and the husband the breadwinner. For short term childless marriages, the goal is to return the parties to the situation they were in before they got married. Keep in mind that there are no precise guidelines to predict the outcome of the division of the estate.

The court will consider all property, wherever, whenever, or however acquired. What this means is the court has the ability to not only consider property acquired during marriage but also property that was acquired or titled prior to marriage. Property acquired by gifts and inheritance are also subject to equitable division. While this may seem unfair, the spouse who makes the claim to the property must show the court how they contributed to its acquisition. If you can show that the asset was commingled with the marital property, the court may include it as marital property.

If you acquire property during the marriage, it is considered marital property and subject to equitable division (not necessarily 50-50). Some examples of marital property include:

• The marital home if it is owned by you
• Vacation Home
• Other Real Estate
• Traditional Pension Plans
• Retirement Plans of all types (401K, Roth IRA, IRA)
• Stock Options
• Deferred Compensation
• Inheritance, and
• Business

As for stock options, the court held that unvested stock options may be included in the marital estate and divided as part of the equitable division of assets. Since it is difficult to determine the present value for unvested stock options, it is likely more appropriate to divide those assets when payments are received. In cases where stock options were granted for future services to be performed after the divorce the court may not consider those stock options. In cases involving stock options the court must divide the stock options between the parties based upon a time rule formula. Baccanti v. Morton, 434 Mass. at 792, 752 N.E.2d at 724. The court noted that the formula used in the Baccanti v. Morton case may not be applicable in all cases.

Our Boston lawyers and attorneys are experienced in all areas of property division laws. Call attorney Robyn A. Briatico at 617-387-6800 to schedule your free 20 minute phone consult.

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Sole proprietorship and businesses owned by either party should be valued by an expert for the purposes of the division of assets if the parties are unable to agree on a value.

The court will consider inheritance as a divisible asset for either party. Also, a working spouses pension, 401k, or profit sharing plan are subject to equitable division under section 34. Other sources of income such as military retirement benefits, annuity, deferred compensation and insurance are also subject to equitable division of assets.

In cases where there are defined benefit plans, a pension expert or actuary is required to determine the value of the plan. However, you don't need an expert for a defined contribution plan such as a 401K since it has a value in the participants name.

The vast majority of cases, the valuation date of marital assets will be "now" (time of trial, time of pretrial) and not "then" (date of separation) as the two can be separated for quite some time. The courts left it open for council to argue as to which dates should be used to value each parties assets.

Mass Property Division Statute (Chapter 208: Section 34)
Factors Considered in Making Equitable Distribution of Estate
(General Laws, Chapter 208, Section 34)

• Length of marriage
• conduct during marriage
  
• Age of the parties
• Health of the parties
• Station in life
• Occupation of the parties
• amount and source of the parties income
• vocational skills of the parties
• Employability of the parties
• Respective Estates of each of the parties
• Liability and Needs of the parties
• Opportunity of each party for future acquisition of capital assets and income, and
• the present and future needs of dependent children of marriage

In addition to the above factors, the court may also consider: 1) the contribution of each part to the acquisition, preservation, and appreciation of the marital estate; and 2) the contribution of either party as a homemaker to the family unit.