Property Distribution

When it comes to property issues in divorce, the courts usually deal with four issues:

1. An inventory of the couple’s assets
2. The current value of said inventory
3. Date of valuation
4. Determining how it will be divided

The first thing you need to do when beginning a divorce action is to become crystal clear that you and your spouse now have separate, distinct and competitive economic interests.  As soon as humanly possible, you should identify and develop a complete understanding of each item that you and your spouse own along with all of the debts that either or both of you are obligated to pay.

Everything, no matter when it was acquired (before you were married, while you were married), is fair game.  Be sure to include all real and personal property – both tangible and intangible.  Promise yourself that you’ll complete a thorough Income & Asset Analysis for what you both own.

Once an inventory and valuation of all the assets is complete, Massachusetts then applies its equitable distribution standard.  This does not mean equal – it means fair.  The premise of equitable distribution is that marriage is an economic partnership.  Equitable distribution is intended to fairly distribute and allocate marital assets between you and your ex. 

Although many ex-spouses may not feel that the property divisions were equitable, it usually relates to how the court considered the 21 factors as mandated in M.G.L. Ch. 208 Section 34.  Here, the Massachusetts statute spells out the factors to determine who gets what.

Learn more about the law in Attorney Irwin M. Pollack's Special Report, "The Big Picture About Divorce in Massachusetts."

Property settlements are not only about dividing up assets; debts must also be considered.  Your property settlement or testimony to the court both present traps for joint debts, which you must be careful to address.  When husbands and wives borrow, they generally do so jointly.  Most assume if they owe a credit card company $20,000, they can each pay their respective $10,000 share and be all set.  Not true.  These debts almost always hold you and your ex jointly and severally liable.

In dividing marital property and debts, many people try to divide each asset as they discuss it – your half of the house is $10,000, my half of the house is $10,000.  Since you will rarely divide the house like this, this is not the most useful way to go about it.  It is best to list each asset as a whole item under the name of the person who will keep it.