IMMany people believe that when couples divorce in Massachusetts, everything is split 50/50. That is simply not true. Splitting everything on a 50/50 basis is more akin to community property states such as California*.

Everything is up for grabs

When a couple divorces in Massachusetts, everything is up for grabs. That means income and assets not only acquired during the marriage, but before the marriage as well, including gifts and inheritances. In many instances, it is difficult for couples to reach agreement on what is “fair” regarding both assets and debt. Couples who don’t manage to resolve property issues on their own will end up going to court to ask for a decision from an arbitrator or a judge.

Massachusetts is an equitable division state

At the time of divorce, a Massachusetts judge will look to see how to split a couple’s property equitably. Equitable simply means “fair and reasonable.” But be fully aware — fair and reasonable does not mean equally or 50/50. Division of property does not necessarily mean a physical division. Instead, the court awards each spouse a percentage of the total value of the property. Each spouse gets items whose worth adds up to his or her percentage. The higher wager earner may get a larger share of the assets than the lower wage earning spouse. Consult your divorce attorney to make sure you get an equitable share.

What about property purchased with a combination of individual and marital funds?

Non-marital property mixed together with marital property generally becomes marital property.

Two examples

Example #1: You and your spouse got married in you 20’s owning next to nothing. During your 7 years of marriage, you did not have any children together. Now you have decided to divorce. In that situation a judge may determine that “fair and reasonable” would be a 50/50 split.

Example #2: A similar scenario at #1, but with a spin. You and your spouse has been married for 20 years, had 3 kids together, and the wife was a stay-at-home mom for 17 of those 20 years. In this situation, a judge would probably not believe it would be fair and reasonable to split their assets 50/50 because the wife sacrificed having a professional career to raise the couple’s kids, while the husband was free to advance his career. If the wife went back to the workforce right after the divorce, she would be behind by 17 years and be earning less than had she been working in a profession while she was married. In this situation, fair and reasonable would mean that the wife would be given a larger slice of the property.

A few factors a court may consider when dividing up a couple’s assets:

  • Age and health of each spouse
  • Job or future employability of each spouse
  • Needs and obligations of each spouse
  • Sources of income
  • Length of the marriage
  • Spousal misconduct or other behavior by the spouses during the marriage

Are You Considering Getting Divorce in Massachusetts?

If you are considering filing for divorce and want to know your rights as they relate to your marital property, you may consider speaking with Kerri Quintal, an experienced Massachusetts family law attorney.

Note: When you get divorced you should have a new will, living will, and power of attorney.

* There are nine community property states: Arizona,California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.Alaska is an opt-in community property state that gives both parties the option to make their property community property.