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Can a judge order a later modification and redistribution of marital property properly distributed at time of divorce ?

Concord, MA |

Can a properly executed pretrial agreement of divorcing parties that divides marital property later be subject to judicial modification? I was reading in the Massachusetts appeal Cooper v. Cooper (2004) that the "parties' agreement incorporated into the final (divorce) judgment do not survive the judgment..." I thought the parties' property distribution agreement was treated in future proceedings with the deference given a binding legal contract by both parties. It sounds like this may not be the case, that (Cooper v. Cooper), a judge later considering a post-trial modification order merely needs to "consider the 'wishes' of the parties in their agreement at time of divorce"... So, is the asset division agreement of both parties at time of divorce subject to future judicial redistribution?

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Good issue. The key question to ask is generally whether the property was actually divided at the time of divorce. The Massachusetts property division statute provides "[A]t any time after a divorce ... the court ... may assign to either husband or wife all or any part of the estate of the other ..." In other words, the Court can assign undivided marital property at any time, even after a divorce. This only applies to undivided property, however. Once marital property has been divided, it is not subject to re-division absent very special circumstances. There are several instances in which a post-divorce division of assets may come up: (1.) if the separation agreement or judgment of divorce is silent on the issue of division of assets for some reason, leaving property undivided and therefore subject to future division, (2.) if the agreement or judgment does not specifically divide property that is co-owned in both parties’ names, such as real estate, the property may be deemed "undivided" and thus subject to future division, (3.) if one party concealed the existence of an asset at the time of the divorce, the hidden asset may be deemed "undivided" upon discovery, and thus subject to future division. In the Cooper case, the husband argued that the trial court's alimony award on modification was so excessive that it was *analogous* to a redistribution of marital assets. Husband certainly may have a point in Cooper (hence the remand), but it is important not to take his argument to literally: he was arguing that the alimony award was so high that it was *as if* the trial court was redistributing marital property; he was not arguing that the trial court literally redistributed previously divided property, however. The area where post-divorce division of assets issues are most common are when parties agree that one spouse may continue to live the former marital home for a period of time with the children following the divorce, before selling and finally dividing the property. The appellate courts have found that a party’s use and enjoyment of the marital home in these instances can be considered a component of child support, and therefore modifiable (e.g. a wife was supposed to sell home after 5 years, but may file modification seeking an extension of time in home where needs of children make it necessary). These cases merely involve when a home will be sold, however, not whether the home should be sold at all. In short, absent a showing of fraud, duress, etc. the division of marital assets is not subject to "future judicial redistribution". However, as in Cooper, where a court has the authority to dramatically increase or decrease child support or alimony following a divorce, perhaps this amounts to a distinction without a difference: if a court increases or decreases support drastically enough, the overall financial impact on one or both parties can be comparable to a “redistribution” of marital assets.

The representations made herein are for informational purposes only, and are expressly not legal advice. Please consult a legal professional to resolve your legal issue.



Awesome answer, thank you. This is very complex: it deals with intellectual property acquired during marriage and I have questions about IP acquired after divorce. No, I have no money for a patent attorney. I can't find any Massachusetts law on IP. USPTO says patents are "personal property". But Mass is a community property state. I'm worried about entering into future IP agreements if "ownership" is not indisputably 100% mine as sole owner of the IP...


The judge's responsibility/goal is to ensure that a fair and final division of assets has been made simultaneous with the judgment of divorce. Can the agreement be subject to "future judicial redistribution?" While I haven't personally seen or heard of a case where that has happened, I know that Rules 59 and 60 of the Domestic Relations Procedure cannon exist for that very possibility.


Property division in a properly executed separation agreement, which is submitted to the court and approved will be final except in very limited circumstances of fraud, duress or mistake. Property division does survive as a rule, but issues relating to alimony of child support are often times merged into the judgment of divorce, which means the court can modify those provisions under an action for modification, and where there are arrears they may be a new distribution ordered.


It is always possible yes. I do not really understand all the facts here. You should consult with a local attorney in person.

IF YOU FOUND THIS ANSWER HELPFUL PLEASE MARK IT SO. This information is provided by PEGGY M. RADDATZ, Attorney At Law as a pro bono service. YOU SHOULD CONSULT WITH AN ATTORNEY IN PERSON who has specific expertise in the area of law you are asking about.


Sounds like your "pre-trial agreement" was never adopted by the court as part of a Judgment. The reality is that an Agreement of the parties is not always accepted by the Judge as being fair and reasonable under all the circumstances. A divorce Judgment is a judgment of the presiding Judge. The Judge either accepts your agreement which the two of you ask the Judge to accept or the Judge simply enters his/her own Judgment after hearing.

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