Kajko, Weisman & Colasanti, LLP

Divorce basics for Massachusetts residents

While most people likely have much more romantic definitions of marriage, at its core, marriage is the legal union of two individuals. When two people decide to marry, they essentially enter into a binding legal contract the terms of which, surprisingly, many married individuals aren't fully aware of until they begin to contemplate filing for divorce.

Divorce laws vary by state and individuals who plan to marry or divorce in Massachusetts would be wise to ensure that they understand how a divorce could impact their lives with regard to finances and the division of property.

Massachusetts residents who file for divorce have the option of filing for either a fault or no-fault divorce. The vast majority of divorces in the state are no-fault, meaning that both parties agree that a marriage is "broken beyond repair." However, even in cases where both spouses agree to a divorce, there may be disputes related to divorce matters including the division of property and child custody. In cases where a divorcing couple is not able to come to an agreement about these types of issues, a divorce is contested and the courts must step in to make decisions.

When the courts get involved in divorce cases, a judge uses the legal principles of equitable distribution to determine how a couple's finances and property should be divided. It's important to note, however, that when it comes to divorce the term equitable does not mean equal. Rather, a judge takes a number of factors into consideration, such as the duration of a marriage and each spouse's ability to earn an income, and then attempts to divide property and assets in a fair manner.

Massachusetts is different from other equitable distribution states in that all property, regardless of how or when it was acquired by either spouse, is fair game. This means that even assets and property acquired prior to a marriage or during a marriage as an inheritance or gift, is considered marital property and therefore subject to distribution during a divorce.

 

Source: Mass.gov, "Divorce," Oct. 28, 2015

Massbar.org, "The basics of equitable distribution and the treatment of gifted and inherited assets in Massachusetts," Patricia A. O'Connell and Donald G. Tye, June, 2014

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