Property Division During Divorce

January 31, 2013

Property division during divorce

People getting a divorce often have concerns about property division. Many couples are able to reach a property division settlement outside of court, and the divorcing spouses sign a settlement agreement that is generally approved by a judge. However, if the parties cannot come to an agreement, a family court judge will decide how to divide the couple's property based on Massachusetts law and will order a property award.

Equitable distribution

Massachusetts is an equitable distribution state, as distinguished from community property states. In equitable distribution states, a couple's marital property is not necessarily divided 50-50 upon divorce. Instead, the marital property is divided fairly, which may not always mean it is divided equally.

Process of property division

The family court first classifies which debts and properties of the parties are marital and which are separate. The distinction between marital and separate property is incredibly important because although marital property is divided during a divorce, separate property generally remains the property of the spouse to which it belongs.

Classifying an item as marital or separate property can be somewhat confusing. The general rules is that property and debts acquired during the marriage are generally marital, but the property and debts acquired by one spouse before the marriage or by court award, gift or inheritance are considered separate property.

This distinction can become more difficult to make because couples often combine and mix separate property with marital property during the course of their marriages. Items purchased by the funds of separate property generally also qualify separate property. The family court likely will find items purchased by the commingled funds of separate and marital property as marital property. Businesses that one party started before the marriage but continued during the marriage can become marital property depending on the circumstances. Finally, any property or debts that were deemed separate during the marriage will usually remain separate during the division of property.

The family court then calculates the pecuniary value of the marital debts and property and distributes them in an equitable manner. The factors to be considered are the parties' ages, medical conditions, duration of the marriage, occupations, skills, incomes, assets, future employment prospects and the needs and liabilities of the parties.

If you have questions about property division

Property division during a divorce can be complex. Valuating businesses and other assets properly is necessary for fair distribution of marital property. If you have questions about property valuation or division during a divorce, you should speak to an attorney with experience in family law. Divorce lawyers with experience in family law can not only represent a divorcing husband or wife but also help the client negotiate a fair property division settlement.

Article provided by Schneiders & Schneiders
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