Everything. In Massachusetts everything is up for grabs in a divorce, and it doesn't matter whether you had certain property before the marriage, or even after separation, although the court does give consideration to these factors when determining a fair and equitable division of property upon divorce. That begs the question, how does a court, or how can the parties themselves, determine what is a fair and equitable division of property? This is an extremely important question, because unlike issues of alimony, a judgment of property division is final and cannot be modified after judgment.
According to the statute governing property division, MGLA Chapter 208 ?34, the court MUST consider the following factors, and provide specific findings for each as to how they figured into the court's decision, otherwise the judgment could be reversed on appeal. If the court meets its obligation, then reversal on appeal would only occur if the court abused its discretion. Those factors are:
Length of the Marriage
The longer the marriage, the significance of each spouse's "separate" property fades. It has been suggested that marriages of 7 years or less are short-term, marriages of 7-15 years are intermediate, and marriages of more than 15 years are long term. However, courts do not use mathematical precision when determining property division, and the facts and circumstances of each case are considered apart from any others.
Conduct of the Parties
This does not necessarily mean that if one spouse commits adultery then the other spouse will get all of the property. More commonly this directs the court to consider to what extent one of the spouses enhanced (e.g., by sound investments) or diminished (e.g., by gambling) the value of the overall marital estate by their conduct.
Age of the Parties
Age is important for obvious reasons, and this factor is linked with others such as health, station, and employability of the parties. The older the couple, the more difficult it will be for either of them to start anew and acquire income-generating property, and it is also more likely that the marriage was long-term. In this situation property assignment can be significant. If the parties are younger, then they will likely still be able to acquire property for themselves before retirement.
Health of the Parties
If one spouse suffers from an illness or injury, then that spouse will likely receive a significant property assignment, but this always depends on the other factors as well.
"Station" of the Parties
This refers to quality of life, or standard of living. The courts want to keep each party on equal footing, such as what they enjoyed (or lacked) during the marriage so that one party does not obtain a significant enhancement to their quality of life at the expense of the other. This is where the issue of alimony can come in to play, and serve as an equalizer if there is significant property that cannot easily be divided.
Occupations of the Parties
Although many couples have occupations and careers, in many instances one of the spouses do have to sacrifice their career in furtherance of child rearing, at least to some extent, while the other spouse can devote their efforts full-time to their own career. The courts take this into consideration when dividing the property, and whether the child-rearing spouse can return to develop their career as if they had not taken time off for purposes of taking care of the home and the children.
Amount and Sources of Income
This can create intense litigation between the parties, especially if one spouse believes that the other is purposefully earning less in an effort to enhance their property assignment, or to reduce potential support obligations. If the court finds that one of the parties is purposefully earning less, then the court could attribute income to them and award the other party an enhanced property award based upon the attribution of income.
This is a subjective analysis of a party's skill, or ability to perform a job, that would generate income that would allow the party to enjoy the same station they enjoyed during the marriage. This factor is considered together with others pertaining to age, occupation, and employability.
Employability of the Parties
This is a more objective analysis of the job market for a party with consideration of their vocational skills, as well as the party's employment history. A home-maker that had not worked during the course of a long marriage will likely get a much more generous property award than a spouse from a short-term marriage that did not produce children, for example.
Your estate is everything you own, regardless of how and when the property that comprises your "estate" was acquired. Massachusetts does not generally make a distinction between what is separate or marital property, though in short-term marriages the court often will take this into account. It is all a matter of judicial discretion.
The court will consider who incurred the debt, when, and for what purpose, when making property divisions.
This factor pertains to the ability of a spouse to support himself or herself, weighed in consideration with the other factors.
Opportunities for Future Assets and Income
The court will consider the party's respective abilities to generate income or acquire assets in the future.
The court may take the following factors into consideration, such as:
Contributions of the Parties
This is related to the conduct of the parties, focusing on how much a spouse enhanced or maintained the value of assets of the marriage, such as the family home or other investments. If one of the spouses provided major contributions while the other did very little, then the spouse that provided contributions would likely be provided more of the property to which they contributed. This is not limited to financial contributions, but includes day-to-day maintenance and labor as well.
Contributions as Homemakers
The courts attribute great value to the efforts of a spouse to care for the children and the family homestead, and the courts recognize that the longer a spouse performs this role the less likely that spouse will have vocational skills that would render them employable, which may cause the court to provide the spouse with a significant property award and/or alimony decree.
Needs of the Children
The most common example would be the court awarding the marital home to the custodial parent for purposes of raising the children, providing that once the children move out from the home that it be sold and the proceeds be divided from the sale, unless the non-custodial parent's interest in the home can be bought out by the custodial parent (if other significant assets exist).
In summary, there is no formula for property division. Each case is unique, and will be considered in isolation from others, based upon the evidence provided by the parties. A good presentation of evidence will take into consideration all of the factors provided above so the court can make a sound decision on the property division issue. This is especially important considering that the judgment by the court on property division is final, and cannot be modified later.
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