Dividing the marital assets in a divorce can be a difficult and disputed issue. Massachusetts, like most states, is an equitable divorce state. That means that the goal of state law is to divide the marital property as equitably as possible. This does not ensure a 50 percent division of assets; it only means the goal of state law is to divide marital assets according to what is most fair to each person.
Divorcing spouses do have the option to reach a divorce settlement outside of court. Through mediation or negotiation, the parties can divide assets according to a plan with which they both agree. Creating a "Marital Settlement Agreement" is often a less contentious process than having a court decide property settlement, but it is not appropriate in all divorce cases.
If the divorcing spouses cannot agree on a division of their property, the court will step in and divide the property for them. The court will first separate all of the property into individual and marital property. Individual assets are assets which an individual brought into the marriage that were not commingled. Marital property consists of assets and property obtained during the marriage by either spouse, with only a few exceptions such as a gift or inheritance to a single spouse.
After the court determines what is marital property, it will value it in its entirety. Valuation may seem simple, but it can be complex depending on the assets involved. Establishing the value of a small business, for example, can have a huge impact on the final division of property. Incorrectly valuing a small business can be extremely harmful to the finances of one party in a divorce.
Only once all marital property is valued will a court begin to divide the property. In dividing marital property, a court considers:
- How long the marriage lasted
- The age, health, job status, vocational skills and employability of the parties in the divorce
- The amount and sources of income available to each party
- The needs of each of the parties
- The parties' future financial prospects
Again, the court will not necessarily divide assets equally, but equitably. The goal of asset division is to keep both parties to the divorce in as similar a financial situation after the divorce as they experienced during the marriage.
Whether reached independently between the parties or in court, property division can be complex. For example, not all divorcing couples know the best way to access retirement benefits or know to immediately change insurance beneficiaries. It is best to obtain the help of an experienced divorce lawyer to ensure that your rights are protected throughout the divorce process.
