Dividing Marital Property in a Divorce

Marital property is defined as the assets acquired during a marriage.

However, in Massachusetts, all assets are considered marital property. Even though no assets are considered “non-marital property” under the state’s law, certain assets may be distributed differently under varying circumstances. Therefore, it is still important to understand what would be considered non-marital property in case your divorce situation falls under these special circumstances, such as a shorter marriage length or a varying income.

The goal of the courts when dividing marital property is to divide it equally. This does not, however, always mean that everything is split down the middle, as both spouses probably do not have the same income. Therefore, “equitably” dividing marital property may look more like a three to one ratio, depending on how the financials were structured within the marriage.

The following article from About Divorce Support explains what is considered marital property so that you may understand how dividing marital property works in a divorce.

How Does The Court Determine If Property is Marital Or Non-Marital Property?

The courts have no authority over non-marital property. So, the first thing the court has to do is determine whether they have authority over property. Generally speaking, all property acquired by either spouse before the marriage is considered non-marital property. All property acquired after the marriage is considered property of the marriage or marital property. If the property is marital property then the court must “equitably” divide the property.

Property Is Presumed To Be Marital Property Except For:

  • Property acquired by gift, legacy or descent.
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
  • Property acquired by a spouse after a Judgment of Legal Separation.
  • Property excluded by valid agreement of the parties.
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
  • Property acquired before the marriage.

When marital and non-marital property has been combined the process of determining marital property can be quite complicated. For example, what happens when one spouse uses non-marital property such as an inheritance to buy a house with the other spouse? What happens when one spouse inherits money and that money is put in a joint bank account?

If a court decides that property is marital property then the court must determine how to “equitably” split the property. State divorce laws differ on the meaning of “equitable” and most states do not consider “equitable” to mean equal.

When Dividing Marital Property The Courts Consider The Following:

  • The contribution of each party to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, including the contribution of a spouse as a homemaker or to the family unit.
  • The dissipation by each spouse of the marital or non-marital property.
  • The value of the property assigned to each spouse.
  • The duration of the marriage.
  • The economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live in the home for a reasonable period, to the spouse having custody of the children.
  • Any obligation and rights arising from a prior marriage of either party.
  • Any post-nuptial agreement of the parties.
  • The age, health, occupation, amount and sources of income, vocational skills, marketable skills, estate, liabilities, and needs of each of the parties.
  • The custodial needs of any children.
  • The reasonable opportunity of each spouse for future acquisition of capital assets and income, the tax consequences of the property division upon the respective economic circumstances of the parties.

It is important that you hire an attorney who is familiar with your state’s laws and how your particular court jurisdiction normally handles property distribution in order to help you resolve this very complicated issue.

In Massachusetts, it can sometimes be complicated to determine which property was acquired by a spouse after legal separation, since as soon as one spouse moves out, they are considered “legally separated” and are not required to file as such. Therefore, if any substantial purchases are made after separation, it may be important to keep track of them so that one may avoid having them included under marital assets.

Dividing marital property can be a complicated process, as not everything can be divided equally and each spouse contributes different types of value to the relationship. For example, in a marriage with children, the spouse that spends the majority of time with the children may be eligible to keep the house and remain with the children, even if that spouse contributed less monetarily towards the mortgage payments. In this instance, it may be beneficial to sell the house and divide the assets in a manner that is most suitable for the situation.

The best way to ensure that you receive the property that is owed to you is to contact a divorce attorney. Revelli & Luzzo Attorneys at Law focus on family law and would be happy to assist you in dividing marital property fairly.

Do you think that dividing marital property tends to be a fair process, or are the courts doing it ineffectively?

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