Divorcing couple

Types of Property Distribution Issues That Can Arise in a Divorce

Divorces are difficult experiences, regardless of the issues that exist between the spouses. Property distribution can be especially challenging. Massachusetts is an equitable distribution state, which means judges will divide the property based on what is equitable (fair) and not necessarily what is equal. This, alone, introduces an element of complexity. And it could be just the beginning.

Which property will be subject to a division?

In Massachusetts, any property owned by either spouse is potentially subject to division. This can include everything from home furnishings to real estate, retirement assets, bank accounts, vehicles and valuable collections. Generally, property that was owned by one spouse prior to the marriage will be retained by that spouse, however. 

Which property division factors will be relevant?

Courts use a number of factors to split marital property. These include:

  • The length of the marriage;
  • The conduct of the spouses during the marriage;
  • The spouses’ ages, health, current income and employability;
  • The needs and liabilities of both spouses;
  • The needs of any children the spouses have;
  • Contributions made by both spouses to the marriage.

Judges have discretion in how they weigh each of these (and other) factors. For instance, in a very brief marriage,  the duration of the marriage may heavily affect the outcome.

Is property being concealed?

Property concealment is a major problem in divorce law, especially where there is a substantial imbalance of wealth between the parties. Some of the easiest properties to conceal are intangible assets like bank accounts, stocks, and investments. But personal property such as jewelry can also be hidden. There are even cases in which one spouse owns real property that the other knows nothing about.

Fortunately, attorneys have a number of discovery tools at their disposal to compel the other party, or in some cases, third parties, to turn over records concerning marital property. 

Who gets the marital residence?

For most divorcing spouses, a home or other residence is the largest asset that needs to be settled. Unfortunately, that makes the home fertile ground for potential acrimony. Courts have a number of options available to resolve the matter. If spouses can’t agree to a resolution, the court may order the house to be sold and the proceeds split between the spouses. The judge could also award the house to the husband or wife and award other assets to the other spouse to offset the value of the house. 

Will a prenuptial or postnuptial agreement be honored?

Increasing numbers of spouses are turning to prenuptial (before the date of marriage) and postnuptial (after the date of marriage) agreements to streamline property division. But just because the spouses have entered into such an agreement doesn’t mean the court is bound to honor it.

Courts will look for evidence that:

  • Both spouses had the opportunity to retain independent legal counsel to review the agreement
  • There was no fraud or coercion involved
  • All assets were fully disclosed between the spouses
  • Both spouses knowingly and expressly waived their right to court-ordered property division
  • The terms of the agreement are fair and reasonable

Barring those elements, the court could set the agreement aside.

We’re Here to Assist With Each Step of Your Divorce

Property division can be a difficult and surprisingly emotional aspect of any divorce. But retaining skilled legal counsel will help reduce stress.