Massachusetts is not a community property state, how does that affect me?

If you are facing a divorce, one of your primary concerns may be regarding how the court will divide your property and marital assets. In a community property state, everything gets divided equally between a divorcing couple.  When addressing this question when you’re about to go through a divorce in Massachusetts, it is important to understand that Massachusetts is not a community property state. Instead, family courts follow the legal theory of equitable distribution. Under this theory, your marital property will be divided in a manner that the Judge considers to be a “fair” division, hence the term “equitable.”  Because our attorneys have over 35 combined years of exclusive family law experience, we can help you better understand how equitable distribution may apply to your specific divorce case.

Understanding the Difference Between Separate and Marital Property

Unless you have a prenuptial agreement that defines property or assets that you have brought into the marriage as retaining an individual nature that will remain yours in a divorce, everything you own is considered marital property and needs to be divided within your Separation Agreement.  However, depending upon the length of your marriage, it is possible that anything you brought into the marriage will be credited to you in the divorce, which people often refer to as separate property.

For example, if you had a money market account in your own name in the amount of $50,000.00 when you got married and you haven’t contributed any marital funds (which is anything you earn during your marriage) to that account, then you will likely get that account without having to give your spouse any of it within the divorce.  The longer you are married though, the greater chance the Judge would order it divided though.

Another common example is where one spouse purchased a house using money that he or she had acquired prior to the marriage toward the down-payment.  In those cases, and again depending upon the length of the marriage, it’s possible to obtain a credit for the value of the separate funds you used to obtain the home.  After that credit, the remaining equity would usually be split equally.

If you are entering a marriage with any assets, you want to ensure that you talk to a lawyer, even if you’re not interested in entering into a prenuptial agreement, because there are ways you can help the assets you bring in retain an individual character that will give them the best chance at being credited to you upon any future divorce.  If you bring separate property into the marriage that end up “comingling” with marital funds, the argument that you may have had about why you should be credited the full amount of the value may be significantly decreased or removed.

Factors that Impact Equitable Distribution

Because Massachusetts is not a community property state, the court will divide a divorcing couple’s property in a manner it considers to be fair; however, this does not mean that the couple’s assets will always be split equally down the middle. Rather, the Judge will consider a variety of factors when determining the allocation of marital property each spouse is to receive. The earning capacity of each party, each person’s age and health, each party’s contribution to the asset, and each party’s current economic situation are some of the factors that the court will consider before making a final decision.

While Massachusetts recognizes both fault and no-fault divorce, allegations of wrongdoing during the marriage also could impact the court’s distribution of the couple’s property. If one spouse has significantly dissipated assets, the innocent spouse may receive a much larger share of the remaining property within the divorce.  Our firm represented a Wife where the Husband had stopped contributing to their business and had utilized a significant amount of money toward supporting his drug and alcohol addiction during the marriage.  After a multi-day trial, the Wife was awarded 80% of the remaining assets within the divorce judgment.

What if We Agree on How to Divide Our Property?

Unless one person is not being fair within negotiations or is seeking something unrealistic, it is almost always better to come to agreements on how to divide property than to leave the decision up to a Judge.  If you and your spouse are able to agree on how to divide property, that is fantastic and should be commended! When there is an agreement, that agreement can be written out and included within the Separation Agreement (otherwise called a Divorce Agreement).  Even if there are other aspects you do not agree upon, you could still agree on the property division and enter a stipulation on that issue while preserving any contested issues to bring to the Judge to resolve.

Contact an Attorney for Help with Equitable Distribution in Massachusetts

If you are going through a divorce and have concerns regarding your property division, it is important that you retain an experienced divorce attorney as soon as possible. Because Massachusetts is not a community property state, one of our family law attorneys can work diligently on your behalf to protect all assets you are entitled to and begin to strategize an argument on why you should get what you are seeking based on fairness.

The attorneys at O’Connor Family Law can strongly advocate for your rights both during negotiations as well as within the courtroom if a settlement is not possible.  Our attorneys have the experience and skill to help ease your stress during what is often an emotional period so you can worry less about your financial future being protected. Contact our firm today to discuss your case.

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