A Massachusetts divorce lawyer Carmela Miraglia reviews and analyzes the Massachusetts division of assets statute, Chapter 208, s. 34.
Massachusetts is an “Equitable Division” state when it comes to dividing the assets that parties to a divorce own. Equitable does not necessarily mean equal. That said, fashioning an equitable division of a marital estate in a divorce is unique to each case. Massachusetts General Laws chapter 208 section 34 contains the “factors” used by the Court to determine what is equitable in the instant case. M.G.L. c. 208 s. 34 provides that “the court may assign to either [party] all or any part of the estate of the other.” It further sets forth the factors that the Court shall (mandatory) or may (discretionary) consider in ordering an equitable division.
Massachusetts family courts have traditionally viewed marriage as a partnership, a theory that is further supported by the factors contained in section 34 that are considered by the judge when determining an equitable division. See Savides v. Savides, 400 Mass. 250, 252 (1987). As indicated above, some factors are mandatory and some are discretionary and allow for arguments as to why the judge hand down an order that is developed particularly for your circumstances.
Mandatory Factors under Chapter 208, s.34
M.G.L. c. 208 s. 34 provides that the court shall (that means must) consider the following specific factors when making an order relative to the equitable division of a marital estate:
- Length of the Marriage
This is an important factor which is likely why it is listed as the very first factor that must be considered. Typically, in a short-term marriage, which is loosely defined as a marriage of less than 10 years, it is common that each of the parties leave the marriage with with those assets that he or she, respectively, brought into the marriage, particularly if there has been little or no contribution to the specific asset(s) during the marriage. In mid-length marriages, those lasting 10 to 15 years, often times parties then divide just the appreciation of any assets during the marriage, irrespective of whom those assets are titled to. And finally, in long term marriages, those lasting more than 15 years, there is a must higher likelihood that an equitable division will result in assignments of property, irrespective of title prior to or during the marriage, of one spouse, typically the spouse in a superior financial position, to the other.
- Conduct of the Parties During the Marriage
Although conduct is a mandatory factor under Section 34, allegations of bad conduct (i.e. adultery) alone are not likely to have a major impact on equitable division of a marital estate. Although conduct is an emotionally charged factor for the parties and normally makes for a contentious divorce, it is not a hefty factor with the court unless the adultery itself had a significant economic impact on the marriage, for example when a paramour is wined and dined and given expensive gifts. That said, conduct which relates to economic matters, such as gambling away the marital savings, is far more likely to be factored in by a judge when equitably dividing a marital estate. Bottom line is, conduct which creates an economic impact is more relevant to the court, and focusing on conduct that has purely an emotional impact on the marriage will only distract from the financial considerations you must make, likely cost you more to finalize your divorce, and cause your divorce to take longer.
- Age of the Parties
The age of the parties in important mostly because it directly impacts and coincides with other factors that must be considered such as employment, occupational skills, and opportunity to acquire future income, earnings and assets. By way of example, a party in their 20’s has more time and opportunity to acquire capital and assets than does a 50 year old who is close to retirement.
- Health of the Parties
The health of the parties directly relates to a party’s needs, ability to work and/or maintain employment, or otherwise acquire income and assets in the future. Health issues may actually prevent a party from working, which may factor into the determination of equitably dividing the marital estate to provide for that party.
- Station of the Parties
This is the measure the Court looks to in creating both alimony awards and an equitable division of the marital estate. Often times it is impossible for the parties to enjoy the same lifestyle they did while in the marriage, but the Court strives to create an order that will allow both parties to enjoy a lifestyle comparable to the lifestyle enjoyed during the marriage. Lifestyle considerations often include frequency of travel, private school, and elite memberships.
- Occupation of the Parties
These are important factors as they relate to each party’s ability to generate future income, meet economic needs, and acquire future capital assets and income. In some cases, a party may be employed in a position commensurate with his or her education – and earning capacity becomes paramount, especially the earning capacity and vocational skills of an unemployed and/or underemployed party.
- Amount and Sources of Income of the Parties
Income can be generated through means other than employment. All sources of income are relevant to the determination of what a party’s economic contributions and needs are. The amount of income earned by the parties, from all sources, is paramount in determining an equitable division. Beware, if a party has been uncooperative in discovery relative to his or her income, refuses to or cannot produce records supporting their income disclosures, is self-employed, or alleges a substantial decrease in income since the parties separated, the court may draw on adverse inference against that party.
- Vocational Skills of Each Party
This relates to the ability of the parties to acquire and/or maintain employment, earn an income, meet economic needs, and acquire income and assets in the future. Included in this factor is often the needs of minor children, such as schedule conflicts to care for the child/ren, which may impact the custodial party’s ability to maintain employment, regardless of their vocational skill set.
- Employability of Each Party
Similar to vocational skills but more specifically speaks to the respective party’s reasonable prospect of earning income by use of their vocational skills. Often times, the employment history of the parties in addition to the vocational skills is considered by the court. For example, during the recent recession, many contractors, despite their expertise and skills in construction, were simply unable to find employment due to the economy, affecting their employability despite their skill set.
- Estate of Each Party
All property owned by the parties, irrespective of title, may be, and most likely will be, included in the marital estate. Likewise, property acquired by a party prior to the marriage may also be included in the marital estate for the purposes of equitable division. Massachusetts does not recognize the concept of separate property and thus all property, including gifts and inheritances, are most often included in the marital estate.
- Liabilities and Needs of Each Party
Liabilities and needs must also be considered. Any inequality between liabilities and needs may justify a particular property division or alimony award. That said, the court does consider the source of the liability in the determination. Essentially, just as the court may assign or allocate assets of one party to the other, the court may also assign or allocate liabilities of one party to the other.
- Opportunity of Each Party for Future Acquisition of Capital Assets and Income
This factor looks at most of the previous factors that have already been discussed cumulatively. Typically, a party with a lower opportunity may anticipate a greater allocation of assets and/or lower allocation of liabilities in an equitable division.
- Amount and Duration of Alimony
Section 34 authorizes the court to make an assignment of all or any part of the marital estate to either party “in addition to or in lieu of a judgment to pay alimony.” Before dividing assets, the court will consider any alimony to be awarded by to either party, in addition to other section 34 factors. Incorporating any alimony award allows the court to make a property division that accomplishes a more equitable judgment.
- Present and Future Needs of the Dependent Children of the Marriage
The children and their needs are always substantial factors considered by the court in ordering equitable division. This may result in a custodial parent, that is the parent with physical custody, being awarded the marital home or a postponement of the sale of the marital home until the children have graduated from high school.
Although all of these factors must be considered by the court, the judge has substantial discretion as to how much weight is afforded to each factor, if any weight at all, and that could majorly impact an equitable division of marital assets.
In addition to the 14 mandatory factors above, the statute provides that judges "may also consider" two important non-mandatory factors.
- Contribution to Marital Estate. The statute provides that the Court may also consider "the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates". Examples include any assets that a spouse brought into the marriage, as well as the souse's financial contributions to the marital estate during the marriage.
- Contribution as Homemaker. Similarly, a court may consider a spouse's non-financial contributions such as child-rearing and homemaking, which includes cooking, cleaning and other domestic tasks.
Although a court is not required to consider the two non-mandatory factors, in many cases each spouse's contribution to the marriage through earnings, assets are homemaking are critical factors in the division of assets. In particular, shorter marriages in which one party brought substantial assets into the marriage can have a major effect on the division of assets.
About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.