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How Will Property Be Divided?

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The Probate and Family Court can only issue Judgments to divide property in divorce cases. If you have lived together, have children, but were never married, the Court cannot help you divide your property.

Massachusetts is an equitable division state. This simply means that our laws divide property “fairly.” Fairly, however, does not always mean 50/50. It also does not mean that property you had before you were married is off-limits.

When judges look at property division, all of the parties current and pre-marital property is looked at together. Think of it as everything going into a single pot. Then we look at a list of factors to decide what is fair when it comes to dividing this pot. The factors that are looked at are:

  • length of the marriage
  • conduct of the parties during the marriage
  • age of the parties
  • health of the parties
  • station in life of the parties
  • occupation of the parties
  • amount and the sources of income of both parties
  • vocational skills of the parties
  • employability of the parties
  • the estate of the parties
  • liabilities and the needs of each of the parties
  • the opportunity of each party for future acquisition of capital assets and income
  • and the amount of alimony being awarded

This list is what we call the Section 34 factors.

As you can see, it’s a long list and each of the factors will vary depending on the circumstances of the parties.  Therefore, each couple’s divorce property division will be different.  It is not a simple, one size fits all approach as you might have with states that simply divide all property 50/50.  This approach is much more nuanced and can be adapted to fit the parties individual circumstances.

With that being said, because it’s not a simple 50/50 split, and there is more flexibility, that means that there is more room for argument.  More room for argument means more litigation and more costs for the parties.

If you have a good lawyer, they should be able to tell you from experience, what a fair and reasonable settlement might look like.  Every case should not have to be argued and litigated to the fullest extent in court if the parties and their lawyers are reasonable and be open to negotiate with each other.

Additionally, please read more about mediation, high asset divorce, grounds for divorce, and other divorce FAQ’s.

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