Dividing Property in a Divorce: What You Need to Know
When you are going through a divorce, few issues feel as overwhelming as dividing property. Whether you are concerned about who keeps the house, how to fairly divide retirement accounts, or worried about hidden assets, it is essential to understand how Massachusetts law treats property division.
At Carbone Law Firm, we have been helping clients navigate these challenges for twenty-four years. With deep knowledge of Massachusetts divorce law and a strong commitment to protecting our clients’ interests, we are here to make sure you know what to expect — and how to prepare.
Community Property vs. Separate Property
First, let us clear up a common misconception. Some states operate under "community property" rules, where marital assets are split 50/50. Massachusetts is not a community property state. Instead, it follows the principle of equitable distribution, which focuses on a fair — not necessarily equal — division of assets.
That said, it is still important to understand the basic categories:
Marital Property: Generally, any assets acquired during the marriage are subject to division. This includes income, real estate, retirement savings, and even debts.
Separate Property: Assets owned by one spouse before the marriage, inheritances, or gifts received individually during the marriage may be considered separate. However, generally speaking, these assets are nearly always subject to the court’s equity powers and can be brought into the marital estate depending on several factors. SOme of these factors are 1) the length of the marriage (the longer the marriage, the more likely an asset will be considered Marital); 2) when the property was brought into the marriage, and 3) if the parties used or relied on that property during the marriage (the term the courts use is whether or not the property was “woven into the fabric of the marriage).
Another factor in determining if property is Marital or Separate is if the parties have designated that property as such in a Prenuptial Agreement. Prenuptial Agreements are a topic outside the scope of this post, but if the parties agreed before the marriage that certain property will remain separate, then courts will factor that into their decision.
A general rule is that Massachusetts Probate and Family Court judges have the power over all property in a divorce “whenever and however acquired." At Carbone Law Firm, we help our clients distinguish between marital and separate property and build a strong case for what should (and should not) be divided.
Hidden Assets: What to Watch For
Unfortunately, not every divorce is handled transparently. Sometimes one spouse may try to hide assets in an attempt to keep more than their fair share. Signs of hidden assets include:
Sudden changes in financial behavior
Unexplained withdrawals
Transfers to other accounts
New debts or faked expenses
Undisclosed business interests
Massachusetts courts expect full financial disclosure during divorce proceedings. Forensic accountants and financial experts can uncover any hidden assets, ensuring that you receive what you are entitled to under the law. Several judges follow a simple rule: if after a divorce is final a spouse discovers that the other party hid an asset and can provide evidence of this in court, then 100% of that asset will be awarded to the non-offending party.
This list above is not exhaustive, but one area to explore is “changes in financial behavior.” If a spouse starts hiding assets or camouflaging them behind the thin veneer of propriety - for example, a husband who sells to his brother his boat for $100.00 when the boat is worth over $100,000.00. This is what is called a "Fraudulent Conveyance" under Massachusetts General Laws c. 109A. Specifically, a party that tries to convey assets fraudulently to a third party in anticipation of divorce may be in violation of this act.
This topic requires close attention to details, especially bank records and changes in behavior. As an example, a spouse for the prior 2 years always deposited their paycheck into Account -1234; but after the divorce was filed, those deposits stop. It's safe to say that the spouse now has an unknown bank account somewhere where they are depositing these checks.
Understanding Equitable Distribution
In Massachusetts, the court considers multiple factors when dividing property, including:
Length of the marriage
Conduct of the parties during the marriage
Age, health, and occupation of each spouse
Sources and amount of income
Contribution to the acquisition, preservation, or appreciation of assets
Future financial prospects, including earnings and the ability to accumulate assets in the future.
Equitable does not mean equal. It means fair, considering all the circumstances. For example, if one spouse sacrificed a career to raise children, the court could award them a greater share of the marital assets.
Having an experienced attorney can make all the difference in presenting a compelling case to the court. At Carbone Law Firm, we bring twenty-four years of litigation and negotiation experience to the table to advocate for our clients’ best interests.
FAQ: Dividing Property in a Massachusetts Divorce
Q: What happens to the family home?
A: Generally speaking, absent a compelling reason otherwise, a court would order the Marital Home sold and the proceeds divided between the parties. The court may award the home to one spouse, but this is nearly always if there is a child still residing in the home with significant special needs. The court will only arrange for one party to buy out the other’s interest if the parties agree.
Q: Can my spouse take money from our joint account during the divorce?
A: Either party can access joint accounts until the court issues a formal order. It’s critical to speak with your attorney early to protect your interests.
Q: Is my inheritance protected from division?
A: Inheritances are generally considered separate property, but if they have been mixed with marital assets (like being deposited into a joint account), they may be partially subject to division. Further, the court can take into consideration potential inheritance when dividing the property the parties have at the time of divorce.
Q: How do courts treat debts?
A: Just like assets, debts incurred during the marriage are divided equitably. However, the court will consider whose name is on the debt and who benefited from it. The most extreme example of this is if a party has incurred debt on behalf of a third party, thus dissipating marital assets in favor of someone outside the marriage. The most obvious example here is if a party took debt out for an extra-marital affair - married person paying for their girlfriend/boyfriend's rent or expensive vacations, for instance. Most judges would treat that debt as the obligation of that spouse alone with no balance against the other spouse.
Q: What if I suspect my spouse is hiding assets?
A: Talk to your attorney immediately. We can petition the court for discovery orders and involve financial experts to track down hidden accounts, underreported income, or misrepresented assets.
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