What You Need To Know About Property Division

During a divorce, soon-to-be-ex-spouses divide shared assets such as real estate, debts, investments, etc. A multitude of factors plays into property division, including prenuptial and post-marital agreements, and what assets each party considers marital and separate property.

If you're wrapped up in a property division case, the Ostendorf Law Group, PLLC, can answer questions you have about asset division to give you a more thorough outlook on your case. We'll also fight for your right to retain certain assets, either through out-of-court negotiation or in the courtroom.

Learn more now! Fill out our contact form online or give us a call at (508) 593-1408 to receive a no-cost, no-obligation consultation with one of our Mansfield property division attorneys.

How Does Massachusetts Law Govern Property Division?

There are two types of property: marital property and separate property. Generally, marital property applies to assets a couple acquire while married, such as a marital home or a joint bank account both parties contribute to. Separate property applies to property acquired either before marriage or individually by each party, such as student loans acquired pre-marriage or an investment made by one spouse post-marriage.

The Massachusetts Commonwealth is somewhat unique in its approach to property division. Under Commonwealth law, a judge can divide all of a couple's property equitably, whether that property is separate or marital. In other words, even property traditionally considered 'separate,' such as a car gifted explicitly to one spouse by their parents, may be eligible for division in Massachusetts.

Generally, however, judges allow each party to retain their separate property and only divide marital property.

The vague nature of Massachusetts property division law makes asset division a lynchpin issue in many Commonwealth divorces. The gray areas that exist in Massachusetts property division law allow asset division conflicts to turn ugly fast in Massachusetts.

Each party in a Massachusetts divorce needs to realize just how quickly property division cases can escalate. If you decide to go after your ex-spouse's separate assets, they can just as easily do the same to you, resulting in a lose-lose situation for both parties where everyone loses assets they consider valuable or have personal attachments to.

If you can, focus on working with your ex on a pragmatic approach to asset division. Assuming extenuating circumstances such as domestic violence aren't present in your divorce, both parties deserve respect and consideration despite the hurt feelings and broken promises that have led the couple to divorce.

If you can't work with your spouse to determine how property division occurs, both parties should seek the help of a mediator. Alternatively, family lawyers representing each party can work together to draft a property division arrangement.

Which Assets are Separate, and Which are Marital?

Asset division contains gray areas and complexities for many couples. It is a fundamental aspect of divorce that all assets, including household goods, bank accounts, and other cash assets, real estate, vehicles, and retirement accounts, must be divided equitably.

It's important to note that "equitable division" doesn't mean property necessarily gets divided 50/50 between parties. For example, if children are involved, and one parent is awarded sole custody, that parent may be awarded the marital house to help facilitate adequate care of the children.

The priority of the court in a divorce is to ensure both parties can maintain an equivalent lifestyle post-divorce to the one they enjoyed while married. To achieve that goal, one party may be awarded more marital property than the other.

Common sources of potential conflict or challenge in property division include the following:

• Fair division of retirement accounts. Qualified Domestic Relations Orders (QDROs) can help determine the value of portions of retirement accounts accumulated during a marriage.
• Fair division of stocks. If the couple invested in stocks together, they'll be divided amongst both parties.
• Resolution of the question of alimony. Alimony arrangements can play into how property is divided. For example, a parent may be given the option by a judge to pay more alimony in exchange for retaining more marital property.
• Determining what types of asset division, spousal support, and/or child support arrangements are most advantageous from a tax perspective. Courts don't want individuals to manipulate the property division process to try and game the tax system, so the tax benefits of assets are considered during property division.
• Evaluation of enforceability of any pre-existing premarital agreement. Prenuptial agreements often specify how property should be divided in the event a divorce takes place. If you signed a premarital or postnuptial agreement, any provisions in it will play a role in your property division.
• Complications such as bankruptcy, foreclosure, and lawsuits. Occasionally, an individual attempts to intentionally destroy separate assets or ruin marital assets to avoid losing them in a property division. Asset tampering, particularly the destruction of assets that results in legal issues such as bankruptcy or lawsuits, is taken seriously by the court when determining asset division.

Typically, courts ask a third party—often a Certified Public Accountant (CPA)—specializing in asset valuation to determine how much a couple's separate and marital assets are worth. The court takes that valuation into account when deciding how to divide assets. Other factors courts consider during the property division process include:

• The age, health, and station of both parties. For example, if one party suffers from some health-related issue, they may receive more marital property to ensure they maintain a good quality of life.
• The occupation, skills, and employability of each party. If one party is less employable or has less vertical professional potential than the other, they may be awarded more marital property to make up for their lack of professional potential.
• How much income each party brings in. Again, the wealthier one spouse is, the less likely they are to retain the lion's share of marital property.
• The needs of each party. If a spouse is overwhelmed by debt or has other significant liabilities and obligations, it can play a role in asset division.
• The property each party owns. Earlier, we used the example of one party retaining the marital estate as an example of this consideration. Courts may prioritize awarding property to the parent who has custody of any children present, or to the party who stands to have difficulty finding a new home if the property is put up for sale.
• The length of the marriage. The longer a marriage is, the more assets each party probably has to divide with one another.
• Whether a party took actions that harmed the other party. Individuals who engage in acts such as domestic violence, addiction, adultery, etc. that lead to the end of the marriage typically receive less favorable judgments in property division cases.

At the Ostendorf Law Group, PLLC, we're proud to offer our clients flat-fee services. When you work with our firm, you never have to worry about hidden fees or exorbitant hourly costs. We tell you up-front how much our services cost, so you don't have to worry about your legal budget