Are you thinking about getting divorced in Massachusetts, but are not sure about what “equitable distribution of assets” under the law means to you? Do you know what are some of the primary factors the court may consider in its decision? Are you wondering when you will actually get your money or property awarded to you by the judge in your case?

Here’s a guide to a few of the basic questions that couples who are getting divorced ask about the distribution of their marital estate. Divorce law is complex. Know your rights and seek out representation from an experienced divorce attorney to help get what is fair and equitable.

Basics of Equitable Distribution of Assets

The marital estate consists of all property owned by either party, including pre-marital property (what you owned prior to getting married). To be clear, it’s not just about splitting the house, the furniture, and money in the savings accounts. The marital estate may also include all vested and non-vested benefits, rights and funds accrued during the marriage, retirement benefits, military retirement benefits (if qualified under federal law), pension, profit-sharing, annuity, deferred compensation and insurance.

Massachusetts is unlike other “marital property” states that exclude premarital property from the marital estate.  In addition, in the Commonwealth of Massachusetts, assignable assets can include post-marriage assets in certain circumstances (such as a portion of teacher’s pension accrued after the divorce).

The court has a broad discretion in weighing the factors that will be considered when distributing the estate. Here are some of the factors a judge might consider in the distribution of assets, in absence of a negotiated agreement between the divorcing couple.

  • Length of the marriage
  • Conduct of the parties during the marriage
  • Age
  • Health
  • Station
  • Occupation
  • Amount and sources of income
  • Vocational skills
  • Employability
  • Estate (home/property)
  • Liabilities (one party may have $10,000 in credit card bills)
  • Needs of each party (one party may need ongoing physical therapy for a back injury)
  • The ability of each party to gain from the future acquisition of capital assets and income
  • The current and future needs of the dependent children of the marriage (college, health issues, and others)
  • Contribution that each party made in not only the acquisition, but preservation or appreciation in value of their respective estates
  • Contribution that one party made as homemaker to the family (husband or wife may have cared for the kids while the other was the breadwinner).

No One Factor Trumps All Others

Many divorce clients ask their attorneys, “Isn’t the length of the marriage the most important factor?” or “Doesn’t the distribution of assets depend on how much income is currently available?” The answer is complex and varies (that’s why you should consider seeking professional representation from an experienced divorce attorney).

The judge, in a divorce case, has a broad discretion in fashioning their  judgment so they can handle the myriad of different fact situations which surround divorce. The effect of this is far-reaching. It is possible that two different judges, evaluating the very same evidence, could arrive at very different judgments – particularly in mid-length marriages, where the assets may be more subtle than those in a short-term or long-term marriage.

It’s easily understandable why a judge might decide to split everything in half in a 40-year marriage. And, it also seems to make a lot of sense to let each party in an 18-month marriage walk out with what they walked in with. But it’s more complex in a 14-year marriage, where there are variety of assets — some inherited during the marriage. With uncertainty such as this existing in the minds of marrying couples, it’s not surprising that there has been an increase in prenuptial agreements to protect each individual’s familial wealth.

There is No Presumption of a 50/50 Distribution of the Estate

Unlike some other states that have adopted an equitable distribution theory, Massachusetts does not have a statutory presumption in favor of a 50/50 distribution. There is no specific formula that must be followed in determining an equitable division of marital property, nor is there any precedent requiring an equal division of assets (even in a long-term marriage). The goal for the courts is to achieve an equitable division of the parties’ assets based on a variety of circumstances, which may not necessarily transfer to an equal division.

When Do I Get My Money?

The court has discretion to determine the date for dividing the marital estate. In many cases, the court will divide the marital estate as of the date of the divorce. This is particularly true if the parties separated, but one of them is caring for a child.  However, in cases where there has been a lengthy separation,  the court will value an asset as of the date of separation.

There are many more factors that come into play in a “fair and equitable” divorce in Massachusetts. Find an experienced divorce attorney to discuss your particular situation to help make sure you receive your fair share.

Other Resources:

 How Will Our Money and Things Get Divided?

The Divorce Process 

When Is My Divorce Final?