Divorce and Property Division in Massachusetts: Who Gets What?

Divorce in Massachusetts is complicated. MA follows equitable distribution rules, not community property rules. That means a division of assets will be equitable but not necessarily equal.

By John DiPiano Updated: July 23, 2021Categories: Divorce Process, Financial Issues

How does property division in Massachusetts divorce work?  It’s complicated.

Massachusetts follows equitable distribution rules, not community property rules. In Massachusetts, a judge will divide marital property equitably (fairly), but not necessarily equally.

• In short, all property owned by either spouse or owned jointly, is marital property subject to division in a divorce. It includes property that a party brought with them to the marriage.
• It would also include inheritances and inherited assets.. I have heard people tell me that lawyers have told them that inheritances are not marital property. That is wrong! They are marital property but are not treated the same way as assets that do not come from a parent of a spouse.  But, inheritances are a larger subject for another article.

Here’s What You Need to Know About Property Division in Massachusetts

What is “Marital property?

In the first instance, any income, assets, and property acquired by either spouse is marital property subject to division.  Property covered by a prenuptial agreement, or that was obtained by a spouse prior to a marriage may, in some circumstances, be considered “non-marital property”  But, that is a determination made by the court.

A Good Place to Start

As to property division in general, a good place to start to begin to understand how Massachusetts divides property in a divorce is to look at  Massachusetts General Laws, Chapter 208, Section 34.  This section of the Massachusetts Divorce Statute may be found here.

If you read Section 34 of Chapter 208, you will see that the court has certain factors that it must take into consideration in dividing property during the marriage.  Section 34 factors include the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive.

None of the statutory factors included in Section 34are initially given more weight than any other factor.  Instead, the court will look at the facts of each case and determine which of the factors may be weighted more heavily than others in deciding how to divide marital property.

In addition, Chapter 208, Section 34 is not the end of the analysis.  If the parties have minor or unemancipated dependent children, their needs are also considered and may drive a much different result than if the parties did not have children.

The Length of a Marriage is an Important Consideration

As a starting point in the analysis, people may consider the court’s initial momentum in cases based on the length of the marriage.  In short-term marriages, the court’s initial momentum will usually be to place the parties back in the position they were in before the marriage. In medium-term marriages, the contributions of the parties to the acquisition, maintenance, and preservation of assets may often be the determining factor of how the marital estate is divided.  In long-term marriages, the court’s initial momentum will be to divide assets equally.

But it is important to keep in mind that there are no bright-line rules, such that if you have a short-term marriage, the court will always put the parties back in the position they were in before the marriage.  In some cases, in a short-term marriage, factors get complicated, especially when you have one spouse who greatly surpasses the other spouse in earned income, has a much brighter horizon for acquiring future capital and assets and there are minor children of the marriage.  In such cases, it is often not fair to the children to create what is known as the “castle and hovel” situation where one parent lives in the proverbial castle and the other lives in the proverbial hovel and the children when they are with each parent see and are affected by the stark difference.

In short, there are no hard and fast rules.  Instead, each case is viewed based on the facts that the case presents. Property division in Massachusetts is complicated.  There is no other way to phrase the reality of the situation.