During the course of your marriage, you and your spouse have acquired assets and liabilities. Now that you and your spouse are going through a divorce, you need to determine how to divide the marital assets and liabilities equitably. In the event that you and your spouse cannot agree on an equitable division of the assets and liabilities, the Court has specific factors that it must consider when ordering an equitable division of the assets and liabilities. The controlling statute of equitable division of the marital estate is Massachusetts General Laws. Ch. 208 §34.
Before we address what “Equitable Division” means, it is important to define the marital estate. According to the Commonwealth of Massachusetts, the “Marital Estate” is considered to be all property owned by the parties. According to the Massachusetts case, Rice vs. Rice, 372 Mass. 398, marital property is defined as, “all property to which he or she holds title, however acquired.” In short, all assets owned by the parties whether individually, jointly, held for the parties’ benefit, or otherwise, are considered part of the marital estate. In certain circumstances, a court may consider a portion of assets of a party acquired prior to the marriage as marital assets, subject to equitable division.
Massachusetts is an Equitable Division State, and not an Equal Division State. What this means is that the Court divides the Marital Estate in an equitable way, which isn’t necessarily an equal one. If you and your spouse cannot agree on how to divide property and debts, a judge will divide the marital estate after consideration of the following factors:
The court may also consider each spouse’s contributions to the acquisition, preservation, or increase in value of the marital estate, and either spouse’s contributions to the family unit as a homemaker and or caretaker.
If either spouse is seeking a division of the marital estate other than 50/50, the parties’ conduct during the marriage and contributions to the marital estate and home are factors commonly cited as a basis for a division of the marital estate other than 50/50. Courts are especially likely to consider misconduct that resulted in the waste or dissipation of marital assets available for distribution (gambling, for example, or giving away large amounts of money without the other spouse’s consent).
The court has broad discretion in dividing up the marital estate in an equitable fashion. If you are going through a divorce, it is important that your interest in the marital estate is protected. For assistance, contact an experienced Massachusetts law firm, such as Karpenski & Schmelkin Divorce and Family Law Attorneys.