Untying the Knot: Equitable Distribution, how the rights and responsibilities get sorted out

My sister got me thinking about marriage and divorce by asking a simple question, she wanted to know what the basic process was for getting divorced (don’t worry shes not getting a divorce… shes not even married).  This got me thinking about what marriage and divorce means in the state of Massachusetts, and what it might mean to my clients in my little Framingham practice.  It also helped me realize that you can only think of these issues all together.  You have to understand marriage to understand divorce, and you have to understand both of those to understand mediation, or prenuptial agreements, or any of the other tools of self-determination available to families.   

First things first: Massachusetts is an equitable distribution state.  Some states are community property states, in community property states (California) all the income and property earned and acquired during the marriage is split 50/50 among the partners.  In common-law states (well, state – only Mississippi) the partners each keep property to which they hold legal title, and only property titled jointly is subject to split.

So what does equitable distribution mean? All property, regardless of when or how  it was earned or acquired is subject to equitable distribution – to being diveded in a divorce.  It does not matter whether you bought something before you were married, or inherited it after, everything goes into the big pot. 

In Massachusetts, Chapter 208 is the statute that speaks to divorce.  Section 34 of Chapter 208 speaks to the division of property and alimony.  Equitable does not mean equal – it does not mean 50/50, it means fair or just considering the circumstance.  So what does the court look at when considering what is equitable?

* the length of the marriage

* the conduct of the parties during the marriage

* the 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

* 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

The court has discretion and can decide how much weight to give to each of these factors, so there is plenty of flexibility given to the judge.  This is why I am an advocate of prenups, as well as of mediation, or collaboration  in divorce.  A lot of discretion is given to judges who do not know your family.  These tools allow you to decide whats best for your family instead of a judge.  More on this in the next post in this family of post.