Both alimony and the division of married property in Massachusetts are guided by statute, G.L.c.208, § 34, often referred to simply as Section 34. The statute as a whole reads as follows:
Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this Commonwealth or another jurisdiction, the Court of the Commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the Court may assign to either husband or wife all or any part of the estate of the other. In determining the amount of alimony, if any, to be paid, or in fixing the amount and value of the property, if any, to be so assigned, the Court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, stage, occupation, amount and sources of income, vocational skills, employability status, liabilities and needs of each of the parties and opportunity of each for future acquisition of capital assets and income. In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The Court may also consider the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit. When the Court makes an order for alimony on behalf of a spouse, said Court shall also determine whether the obligor under such an order has health insurance or other health coverage available to him or her through an employer or organization or has health insurance or other health coverage available to him or her at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said Court has determined that said obligor has such insurance or coverage available to him or her, said Court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse or reimburse the spouse for the cost of health coverage. In no event shall the order for alimony be reduced as a result of the obligor’s cost for health insurance coverage for the spouse.
There are several points to bear in mind about Massachusetts property division law. First, and most significantly, all property owned jointly, separately or in trust, whether as an inheritance from your parents or a gift from your spouse’s great-aunt, is marital property, Pension benefits, business interests, accounts receivable, etc., are all marital property if you or your spouse have it. Massachusetts is what is known as an “equitable division” state. While the trend in most “equitable distribution” states is to exclude inherited or gifted property and to exclude property acquired prior to the marriage by one spouse, Massachusetts at present remains firm in looking at all property, however or whenever acquired, as property that may be divided upon divorce. Individual judges may look at inherited or gifted property in a slightly different way, but it is unquestionably part of the asset picture.
The second point to bear in mind is that “fault” or “conduct” plays a very minimal role in determining how property is to be divided. This is also true in alimony or support awards. In my experience, conduct becomes a factor of significance only when the conduct is so egregious as to be shocking.
Courts, and therefore lawyers, typically begin an analysis of how to divide marital property with the concept that marriage is an economic partnership and that the appropriate way to allocate property is on a roughly 50-50 basis. The 50-50 concept works well if the couple has a fair amount of property that can be equalized with a minimum of disruption. For example, if the net equity in the family’s house is $50,000 (that is, the fair market value minus mortgage) and the family has $50,000 in stocks, bonds, and savings. A division may be house to one party, and stocks, bonds and savings to the other. Unfortunately, most families do not have this level of flexibility because the bulk of their money is tied up in one major asset -the family home.
There is frankly no ideal solution about what to do with the house upon divorce because generally the spouse having physical custody of the children wishes to stay in place until the children finish school. Often, while there may be significant equity in the house, it is the least expensive appropriate housing available. Refinancing to buy out the other spouse’s interest may be a significantly costly burden, and selling the property and dividing the proceeds immediately may not give the spouse having custody of the children enough down payment money to be able to both purchase another residence in the same community and school district and keep the monthly mortgage cost at a reasonable level.
The most common solution to the problem is to allow the custodial parent to remain in the house until his or her remarriage or until the youngest child is emancipated. The property is then sold (or refinanced) and the proceeds divided. If there are no minor children involved, often the property is sold immediately with equal division of the proceeds.
Other than the marital home and savings or stocks and bonds, (which can typically be divided with little difficulty,) other major issues that can come up in the context of division of property are furnishings within the home, business interests that require valuation, and pension and profit-sharing plans and their valuation. Briefly, furnishings seldom tend to be a major problem, but business interests always are. (While in almost no instances have Courts awarded a percentage or share of one spouse's business interests to the other, the value of the interest is nonetheless usually used to offset some other marital asset. Thus, valuation becomes a major issue, usually requiring an accountant or other expert (also true with pension plans).
The above discussion is a general one, intended only to demystify in broad terms the concepts that inform both the Courts and attorneys in handling divorce matters and to make you aware of the legal background against which your own situation will proceed. A full discussion of all assets and liabilities (debts) of the marriage will be necessary.
By: Julie A. Dialessi-Lafley, Esq.