Division of Property and Divorceby Ponichtera & DeNardis, P.C. on 02/09/10
Division of Property and Divorce. As part of a judgment for divorce the Court may divide and assign all or any part of the property of the spouses in the marriage. The Court is authorized to divide property of divorcing spouses pursuant to Massachusetts General Laws chapter 208 section 34. That section defines property in very broad terms and includes almost everything in the marriage (from the house to the boat and just about everything in between) including vested and non vested retirement benefits, military retirement benefits (with some limitations), pension, profit sharing, annuities, deferred compensation and insurance. The law specifies that the Court is obligated to consider twelve mandatory factors and is permitted to consider an additional four discretionary factors to determine how to divide the property amongst the spouses. The mandatory factors are as follows: the length of the marriage, the age of each of the spouses, the health of each spouse, their station in life, their respective occupations, the amount and source of income of each spouse, their vocational skills, employability, the estate of the parties including whether any property was inherited, the liabilities and needs of each of the parties, and finally the opportunity for future acquisition of capital assets and income. The Court may consider the following discretionary factors in determining how property shall be divided and assigned between the respective spouses: 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.
Now this brings up lots of questions. How much weight is to be given to each factor? Does any one factor count more than the others? The answer is - it is up to the judge and it depends on the particular circumstances of each case. The judge can only consider each factor only once in its calculations, but the weight given to any particular factor is up to the Court’s discretion. So long as a judge has clearly considered all of the mandatory factors, it is up to the judge to decide how to use those factors in determining property division. But a Court cannot abuse its discretion. These factors are ultimately utilized by the Court to formulate a fair and final resolution to the property division dilemma. Are you confused? Well it is difficult to sum up everything that truly goes into the division of property in a paragraph or less. But this is the overall framework for the Courts to work under. Lots of cases have been litigated on the division of property in Massachusetts. I will devote future blog posts to some of those cases to give you a better handle on how the appellate courts in Massachusetts have interpreted this section of the law. Remember if you have a particular question on how this property division statute will affect you in a divorce then contact a local attorney concentrating in family law for assistance. You are always welcome to contact our office for a free consultation. Ann Ponichtera DeNardis