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Massachusetts Property Division
Property Distribution Laws in Massachusetts

In Massachusetts the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the property is divided by the Family Court within the Judgment of Divorce. Massachusetts courts take into consideration numerous factors when dividing marital property, including but not limited to, length of the marriage, how much each spouse added to the marriage, the amount each spouse earns or is capable of earning, their ages, health conditions and conduct during the marriage.

Massachusetts also allows couples to make prenuptial agreements, which set out the terms and conditions of a property settlement in the event of a divorce. When the agreement is freely entered, the courts generally uphold the terms and divide property as the prenup dictates, even when the division is at variance from the state laws.

Factors in Massachusetts Equitable Distribution

Massachusetts is an equitable distribution state. Equitable does not mean equal, but rather what is deemed by the Family Court to be fair.

According to the Massachusetts General Law, Chapter 208 Sections 1A and 34, in dividing property, the court considers:

  • 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.

Massachusetts Marital Property v. Separate Property

Unlike many states, Massachusetts does not make any distinction between marital property and separate property when dividing property in a divorce. It is a "kitchen-sink" state, and the court can divide any property owned either by the husband or spouse, or both at the time the couple files for divorce. Even if the property was inherited by one spouse or the other, it is, as they say, in the pot, and subject to division.

Massachusetts divides marital property based on an equitable distribution basis. This means the court will divide all marital assets and debts based on what it believes to be fair. This does not necessarily mean that each spouse receives an equal portion because the court can make any distribution as long as it finds it equitable. Couples can come to their own agreement about dividing property, but if they cannot agree the court will make the determination on their behalf.

Valuing and Dividing Property

First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in an equitable distribution.

The Marital Home

In Massachusetts, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) from are deducted the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and buy out the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Pensions and Retirement Accounts

In Massachusetts, vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In Massachusetts the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)s, 403(b)s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employees salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In Massachusetts, if spouses share in each others retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution, including how much of the benefits are to be paid to each party, when such benefits can be paid, and how such benefits should be paid.

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