Marital property is defined as all the assets, real estate, interests, etc. obtained during the marriage. This includes the marital home, investment properties, bank accounts (regardless of whether they were individually or jointly held), retirement accounts, vehicles (even if they are currently financed), personal property (furniture, jewelry, etc.), and everything else you may have come to own during the marriage. Even a website or blog can be considered an asset.
The issue of division of assets is a highly contested one in divorce proceedings. It is also a highly emotional issue as it often involves either items you hold dear, assets to which you feel entitled because you worked for them, or, if it is about the marital home, because this is the home you and your children know. Most couples come to an agreement as to how to divide their assets. If there is no agreement, then the court will decide what is best and equitable. Basically, the court will attempt to make a fair distribution and accord each side with roughly half of the marital property. However, this can vary depending on things such as the length of the marriage, who “earned” the asset, who brought it into the marriage or who inherited it. You may not agree with their decision.
If you and your spouse have limited assets (i.e. a car and a bank account each with a minimal funds), the court may decide that each party will keep what is in his or her name already unless there are special circumstances. Keep in mind that each case is different and there is no “one size fits all.”
Some divorces are more complex because they have more assets or have assets subject to easier division due to liquidity.
The most common issues or items of contention regarding division of property center around the marital home. There are usually three options:
- The custodial parent can keep the marital property in order to keep the children in the home. This option is the least disruptive in the children’s lives. In this situation, the party keeping the property may be required to hold the other side harmless if they are also on the mortgage. Further, that party may be required to refinance the property within a certain amount of years. If the party is unable to refinance, then they might have to sell the property.
- The property can be sold upon dissolution and the profit can be split equally or however the parties or the judge decide.
- You can buy out the other side taking into consideration the value of the property and the available equity. You might still have to refinance the property within a certain amount of years and hold the other side harmless if you default on the payments.
It is important to understand that holding another side harmless for your default on mortgage payments may require you to hire a lawyer to defend a foreclosure proceeding, indemnify the other side for the damage to his or her credit and reimburse for any expenses related to your default, among other things.
Lastly, a word of caution, it would be unwise to make any transfers of property or funds just before or during a divorce. This can be considered a fraudulent conveyance for the sole purpose of avoiding division in your divorce.
Contact Frank V. Grimaldi, an Experienced Family Lawyer for Questions Regarding the Division of Assets in Massachusetts.