FAMILY LAW INFORMATION
following is provided for informational purposes only. It is not meant
to be comprehensive or to be interpreted as legal advice. It also shall
not be interpreted in such a manner as to form an attorney-client
For such advice, consult an experienced Family Law attorney.
Pursuant to MGL Chapter 208 Section 34 (below), Massachusetts utilizes the following factors in determining property division pursuant to divorce:
1. Length of marriage
2. Conduct of the parties during marriage
3. Age of the parties
4. Health of the parties
5. Station of the parties
6. Occupation of the parties
7. Amount of income of the parties
8. Sources of Income of the parties
9. Vocational skills of the parties
10. Employability of the parties
11. Estate of the parties
12. Liabilities of the parties
13. Opportunity of the parties to acquire future capital assets
14. Opportunity of the parties to acquire further income
15. Contribution of the parties in the acquisition of their Estate
16. Contribution of the parties in the preservation of their estate
17. Contribution of the parties in the appreciation of their estate
18. Contribution of the parties as homemakers in the family unit
19. Needs of the parties
20. Needs of the children
There are generally two things to keep in mind when thinking about Massachusetts law pertaining to the division of marital property:
A) Any property in which either spouse
has any type of interest (no matter whose name it's held in or how
titled) will be considered marital and subject to division
B) Almost any relevant factors enumerated above may be taken into
account by the court in determining the division of marital property.
This does not mean that all such marital property will de divided. It
is often possible to argue successfully for the court to exclude
certain assets and/or liabilities. Items commonly excluded include
assets acquired prior to marriage, gifted or inherited assets, and
liabilities incurred for luxury items or educational expenses
benefiting a single spouse. However, an equal 50/50 division of marital
assets and liabilities is usually a good starting point for analysis.
In the case of assets acquired prior to marriage, the court will very
often look to the length of the marriage and the extent to which these assets were commingled and utilized during the marriage. In the case of relatively short marriages, some judges may even take the approach that they will attempt to put the parties back to where they would have been "but for" the marriage.
Gifted or inherited assets may also be excluded from division through successful argument to the court. Here again, often the most important factor is the length of time the assets have been in the marriage and the extent to which they have been "interwoven into the fabric of the marriage". An approach that some judges will take is to include 5% (five percent) of such assets for each year that they have been in the marriage. Under this method, assets that have been in the marriage for 20 years or longer will be included fully, whereas only a very small portion of such assets will be divided if the marriage is very short or the assets were recently acquired. The Court may also take into consideration expected inheritances and/or the estate plans of the parents of the parties. In these situations, the parents of the parties may be deposed as to what provisions they have made for the child in their estate planning. In order to avoid this, the court will usually be amenable to the parents providing a "Vaughn Affidavit" (an affidavit which will essentially state a range of the parent's assets and a description of the provisions in place for their child).
If one of the parties incurred liabilities for educational expenses during the course of the marriage, it is unlikely that the court will divide this debt. The usual feeling amongst judges is that the education really only benefits one party and that party should be responsible for the debt. However, judges take a variety of approaches as to how to treat the payoff of educational debt during the course of the marriage depending upon the particular situation.
Chapter 208: Section 34. Alimony or assignment of estate; determination of amount; health insurance
Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this commonwealth or another jurisdiction, the court of the commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including but not limited to, all vested and nonvested benefits, rights and funds accrued during the marriage and which shall include, but not be limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance. In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligorís cost for health insurance coverage for the spouse.