If you’re considering parting ways with your spouse, there are many issues that must be determined before a judge will sign the divorce decree — including property and asset division. Notably, marriage is not just an emotional partnership, it’s also an economic one. This can often make dividing marital property one of the most contentious issues spouses face during divorce proceedings. Whether you were married for a few years or several decades, the issue of “who gets what” can be highly emotional. It’s essential to have a basic understanding of equitable distribution and how Massachusetts courts divide property if you are thinking about divorce.

What is Equitable Distribution?

Massachusetts follows the rule of “equitable distribution” when it comes to dividing marital property and allocating debts in divorce. This can include things like the family home, real estate, bank accounts, retirement accounts, furniture, artwork, jewelry, vehicles, business interests, credit card balances, mortgage, and more. However, the equitable distribution doctrine doesn’t mean that assets and debts will be divided equally — rather than apply a 50/50 split, judges in Massachusetts will consider what they deem fair and reasonable when determining the outcome.

Massachusetts courts must consider a number of statutory factors in order to equitably distribute property. These include the following:

• The length of the marriage
• The conduct of the spouses during the marriage
• The age and health of each spouse
• Each spouse’s income and employability
• The assets, liabilities, and needs of both parties
• The amount and duration of any alimony award
• Each spouse’s opportunity to acquire capital in the future
• The needs of the dependent children in the marriage

A judge might also consider each spouse’s contributions to the family unit as a homemaker, as well as their contributions to the acquisition, preservation, or increase in value of the assets. While infidelity itself doesn’t usually affect property division, it may be relevant if a spouse spent a substantial amount of marital assets on the affair. If a spouse squandered marital assets in carrying out the adultery, the court might award a greater share of property to the other spouse.

How is Property Divided in Massachusetts?

There are two categories of property in divorce. In Massachusetts, property and assets are characterized as either marital property or separate property. Separate property generally is defined as any property, assets, or debts that were acquired by either spouse before the marriage, as well as inheritances regardless of when they are received. Marital property is that which is acquired by either spouse during the course of the marriage — regardless of which spouse’s name is on the title.

While only marital property is subject to division in divorce, dividing property can become much more complex when separate assets and marital assets are commingled. Commingling can occur when marital assets are used to increase the value of a spouse’s separate property. Examples of commingling can include renovating a vacation property owned by one spouse before the marriage with marital assets or investing marital funds into a business owned by a spouse prior to the marriage. In such cases, the increase in value may be considered marital property that must be divided in divorce.

Importantly, spouses don’t need to leave the decision of dividing marital property up to a judge. The parties are free to enter into an agreement outside of court regarding how they wish their property to be divided. Mediation and negotiation can often be useful alternative dispute resolution tools that can help spouses reach a resolution concerning property division and other matters in divorce. Significantly, when spouses settle property division matters between themselves, without court intervention, they are often much more satisfied with the results. However, in all cases, a judge must approve an agreement.

How Does a Prenup or Postnup Impact Property Division?

If the parties entered into a valid prenuptial or postnuptial agreement, it may determine the outcome of property division matters in advance. A prenuptial agreement is a contract signed by both spouses before the date of the marriage that can decide a wide range of issues, establish each spouse’s financial expectations during the marriage, and decide property division issues in the event of divorce. A postnup functions in the same way, but it is executed during the course of the marriage.

Prenups and postnups can allow spouses to decide for themselves how their property and assets will be classified in the event of divorce and help them safeguard their separate property. However, a prenup or postnup can be invalidated and would not be enforceable if a judge determines that it was not fair and reasonable at the time it was signed or at the time of divorce. In such instances, the rule of equitable distribution would govern how the couple’s marital property, assets, and debts are divided.

Contact an Experienced Massachusetts Divorce Attorney

Dividing marital property in divorce can be stressful and overwhelming. It’s crucial to have a knowledgeable divorce attorney by your side who can advise you regarding your rights and protect your interests. At Krispin Law in Needham, Massachusetts, we are committed to offering clients with the compassionate counsel and skillful representation they need to navigate the divorce process. To learn more about how our law firm can help with your matrimonial matter, we invite you to contact Krispin Law to schedule a consultation by calling (617) 421-9090. We offer both in-person and virtual consultations for your convenience.