Property Division In Divorce

No matter what standard of living a couple approaching divorce has, division of assets, money and debts in divorce will significantly affect each of their lifestyles going forward. These decisions, therefore, can generate stress and require major consideration throughout the process.

The overarching legal standard in the process is that property and debt division be equitable, premised on basic fairness. To be equitable, division does not have to divide everything 50-50. To determine what is fair, a comprehensive property inventory must be taken and each asset carefully evaluated. For complex or substantial assets like real estate, financial investments, stocks, business interests, professional practices, executive perks, antiques and art, retirement accounts and pensions, and others, it may be necessary to consult with professional experts for appraisal.

If a spouse is suspected of hiding or dissipating assets, the other spouse should hire a forensic accountant or other similar expert to assist in recovering the money or property and in ascertaining this behavior.

Division by settlement agreement

First, the parties can decide through negotiation how they will divide their property and debt between them. Usually this is done through a process of negotiation between their respective attorneys in consultation with their clients. If a settlement can be reached, it will be submitted to the court to become part of the divorce decree.

The judge, however, will review the agreement to be sure it is equitable before allowing it as part of the final divorce order.

Division by the judge

When property and debt division is impossible to negotiate, this will become a contested issue for the judge in the divorce to decide according to the law, which in Massachusetts is fairly detailed in this regard. He or she has broad discretion, but the state statute that governs requires the court to consider certain factors and allows consideration of others at the judge’s discretion. The judge’s property division ruling will only be reversed on appeal if it was plainly wrong.

The mandatory factors:

• Marriage length
• Each party’s marital conduct, a factor not all states allow
• Ages
• Health
• Occupation and “station”
• Income
• Vocational skills and employability
• Estate, or level of wealth and security
• Liabilities and needs of each spouse
• Opportunities for acquiring future assets and income
• Alimony, if ordered
• Needs of dependent children

The discretionary factors:

• Individual contributions to acquiring property, to its preservation and to increases in its value
• Homemaker contributions

The statute allows the judge to divide both marital property (that accumulated during the marriage) and “all or any part of the estate of the other,” which is normally called separate property. While many states do not allow the redistribution of separate property, the Massachusetts law reads more broadly.

Division of debt

Along with property and assets, debts and liabilities must also be equitably divided between the spouses. If a debt is secured by or was incurred to buy certain property, that debt will likely be assigned to the person who takes that asset. Examples of debt include mortgages, credit cards, medical bills, vehicle or boat loans, 401(k) loans, student loans and others.

The attorneys at the law firm of Claudette-Jean Girard, Attorney at Law, in Springfield represent spouses in divorce throughout Western and Central Massachusetts.