Know Your Rights When Dividing the Marital Estate

  • By:Karpenski & Schmelkin

Divorce dividing a houseDividing the marital estate can be a stressful part of getting a divorce. If you are dealing with an ex who wants to argue over marital property and debt, it helps to know what your rights are when it comes to dividing up the marital estate. First, you have to decide what the marital estate consists of and then you have to determine the value of the marital estate. Once the value of the marital estate has been determined, then decisions can be made as to how it can be divided.

What property is subject to division

In Massachusetts, property subject to division includes all property a party holds title to, regardless of how title is held and when the party acquired the property. This includes property that was acquired prior to the marriage and property that is held individually in one party’s name. Massachusetts does not differentiate separate property from marital property.

How marital property is valued

The discovery process in a divorce is very important because it is through discovery that a party is able to not only determine what property is subject to division, but what the value of the marital property is. The date of valuation of marital property is typically the date of divorce. Often spouses have assets before they get married, such as retirement accounts, bank accounts, and the like. If a party seeks to have the premarital portion of a marital asset excluded from the value of the marital estate, the burden is on that party to prove to the court the premarital value of the asset.

How marital assets are divided

Massachusetts is an equitable distribution state. In Massachusetts, property is divided by what the court deems is fair and reasonable. The court determines what is fair and reasonable by considering the mandatory statutory factors. Examples of the statutory factors the Court considers in dividing up property are:  the length of the marriage, the health and age of the parties, the marital lifestyle, the occupation of the parties, the amount and sources of income of the parties, the opportunity of the parties to acquire future assets and income, the contributions of the parties to the marital estate and the contributions of the parties towards the household.

How marital debt is divided

In Massachusetts, the debts of the parties are part of the marital estate and therefore are also divided equitably after consideration of the same mandatory statutory factors. Examples of debt subject to division in a divorce are:  the mortgage, lines of credit, credit cards, student loans, personal loans, and taxes. While the Court considers whose name is on the debt when dividing the debt, that is not the ultimate deciding factor. This means that a party can be responsible for a debt even though the debt is held individually in the other party’s name. An important factor the Court considers when determining how to allocate the debts of the parties is whether the debt was incurred for the benefit of the marriage.

Know what you are entitled to

Dividing the marital estate, both the assets and the debt, can become complicated fast. Work with your attorney to get the knowledge, support, and guidance you need to get through your divorce fairly. When you aren’t sure what you are entitled to, don’t sign any agreement before you have an attorney review it. You may be surprised to learn what you are entitled to when it comes to marital assets during a divorce.

Considering a divorce? Contact the experienced attorneys at Karpenski & Schmelkin today to schedule a consultation and answer any questions you may have about property division.

Posted in: Divorce