Basics of Equitable Distribution of Property Upon a Divorce

| Mar 16, 2015 | Divorce |

In Massachusetts, a Probate and Family Court’s authority to the distribute property upon divorce is entirely statutory and governed by G.L. c. 208, § 34.

In addition to or in lieu of a judgment to pay alimony, the court may assign to either the husband or wife all or any part of the estate of the other, including but not limited to, all vested and non-vested benefits, rights and funds accrued during the marriage and which shall include, but not limited to, retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance.

A party’s “estate” is defined broadly to include “all property to which he or she holds title, however acquired.  As such, the Commonwealth is unlike other “marital property” states that specifically exclude premarital property from the marital estate subject to distribution.

The court has broad discretion in weighing the statutory factors that must be considered when distributing the estate.

The factors that the court must consider pursuant to Section 34, are:

  • length of the marriage;
  • conduct of the parties during the marriage;
  • 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;
  • amount and duration of alimony, if any awarded under G.L. c. 208, §§ 48 – 55 inclusive;
  • the present and future needs of the dependent children of the marriage;
  • contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates (discretionary); and
  • contribution of each of the parties as a homemaker to the family unit (discretionary).

These factors reflect a view of marriage as an implied partnership for the purposes of distribution of property.

No one factor trumps all others, the weight to be accorded each of the Section 34 factors in a particular case is committed to the judge, who has broad discretion in fashioning a judgment.

Unlike other states that have adopted an equitable distribution theory, Massachusetts does not have a statutory presumption in favor of a 50/50 distribution.

Contact the Law Offices of Renee Lazar to discuss your concerns about future financial security and to gain a better understanding of the ” basics of equitable distribution” of property upon divorce relevant to your particular situation.

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