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Dividing Property in a Divorce in Massachusetts

dividing property in a divorceIf you are getting a divorce in Massachusetts, it’s important to understand that Massachusetts is an equitable distribution state. This means that all assets and debts from your marriage will be divided up in a way that is deemed fair, and not necessarily equal to both parties. When you are going through the divorce process, it’s easy to feel overwhelmed. If you aren’t sure what your next step is, it’s time to talk with a divorce attorney to ensure that you receive all that is rightfully yours.

Determining Separate Vs. Marital Property

When considering dividing property, the general rule is that any assets or debts acquired prior to the marriage is considered separate property, while assets or debts acquired during the course of the marriage are considered marital property. When dividing property in the state of Massachusetts, the courts have some leeway when determining where the assets are going to go, even when assets were attained prior to the marriage. The courts divide up property in a way that is fair to both parties with a number of factors taken into consideration.

The Earning Potential of Both Parties

If one party spent the last ten years of the marriage building a career, while the other party was at home raising children, the courts take this into consideration when dividing property and establishing alimony or child support payments. It is simply not fair for the stay at home parent to suddenly be expected to make enough money to be on their own, when they have supported the other party by taking of children instead of investing time in their own career. When dividing up property, the court looks at the earning potential of both parties, and what it will take for the stay at home parent to become employable once again. The party with lower earning power may end up getting more of the assets at the beginning of the divorce.

The Length of the Marriage

The courts take into consideration the length of the marriage when looking at how to divide marital property. For example, if a couple was married less than a year, and one party brought in substantial assets to the marriage, it is unlikely that these assets will now be divided in half. On the other hand, if the couple was married for twenty years, it doesn’t really matter who brought what assets into the marriage, they will be divided up fairly. The length of your marriage matters when dividing property in your divorce.

When You Receive an Inheritance

While technically an inheritance is seen as separate property, if you received an inheritance during your marriage it may be subject to property division during your divorce. If you took some of your inheritance and placed it into a joint bank account, or you used a good chunk of your inheritance for a down payment on a house, this part of the inheritance is now considered marital property. Once you share the inheritance, the part you shared becomes marital property and is subject to division during a divorce.

If there is a significant imbalance between one party and another, the one that received an inheritance may have to compensate the other party financially in order to even out the financial situation of both parties. There is a lot of gray area when considering the division of property during a divorce in Massachusetts, and the judge on your case has a lot of power when it comes to dividing up assets.

When You Own a Business

Businesses and the value of them can be split and divided in a property division in a divorce but whether or not that will happen in your specific case depends on your facts. Typically in a short marriage, dividing an already existing business before the marriage is not likely to happen.  The longer the marriage, the more likely some percentage division might occur.

If a business was started during the marriage, there is more of a chance that it is subject to division.  Some of the factors that go into decision whether and how much a business gets divided are:

  • who owns the business
  • who actively worked on and in the business
  • who put up the working capital for the business
  • did the person who didn’t work there make sacrifices to make the business work
  • was one party a stay-at-home parent

These factors and many more goes into analyzing if and how much a business would be divided.

Another issue with businesses is the value.  If it is decided that the business is subject to some division, how do you value it?  There are many methods of valuation depending on if it’s a corporation, LLC, S corp, etc.  It also matters if it’s a family owned business or if there are other equity holders.  In many cases, a separate accounting firm will need to be retained to come in and put a professional value on the business.  After all, lawyers are not accountants so we do, in many cases, need help when it comes to numbers.

Coming Up with a Divorce Agreement

Most couples prefer to divide their assets and liabilities on their own, without depending on the judge to do it for them. You can come up with a divorce agreement either on your own, working with a mediator, or by hiring an attorney, and your divorce agreement can be filed in court for the judge to review. The judge on your case can make changes to the agreement if they believe one party is not being treated fairly, but it’s important to try and come up with an agreement with your former spouse so that you can make it clear what you want from your divorce.

If you are struggling with your former spouse and you have been unable to come up with a divorce agreement, it’s time to call an attorney who can get the job done for you.

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