The determination of which assets are part of the marital estate for division of asset purposes during the divorce is not always a simple cut and dried answer. There are many factors that the Court takes into consideration when deciding if a specific property is part of the marital estate and, if so, how it gets divides during the divorce.

The short and simple answer is that the marital home can be included as part of your divorce settlement even if it was purchased prior to the marriage or relationship by one spouse. There are a wide range of factors that determine if a property owned by one spouse alone prior to the marriage has become marital property. Some factors include inclusion of the property in the marriage (by the spouses living there or using rental income from the home to pay marital bills), whether or not both spouses pay the mortgage or other real estate expenses, were the spouses in a relationship when the house was purchased, or have contributed to significant improvements.

Massachusetts law requires the division of property in a divorce to be equitable. This means property division must be fair, though not necessarily equal. Requesting that property be deemed part of the marital estate does not guarantee the Court will reach that conclusion. Massachusetts law allows a judge to divide all property regardless of when it was acquired or which spouse actually has “title” to the property. When dividing assets, such as the marital home, a judge will consider the length of the marriage, the present and future needs of the spouses as well as any dependent children, each spouse’s income and contribution, and much more.

The Parties can agree on the value of the marital home or the Judge can decide after a trial. The property can be sold (with the proceeds being divided pursuant to an agreement or judgment); one party can buy out the other’s interest with a cash payment or the equity in the home can be offset by other assets. The Parties can also agree (or the Court can decide) what percentage of the house equity the party who did not purchase it is entitled to.

Because the division of assets can be complicated, it’s recommended you work with an experienced attorney such as Attorney Eric Schutzbank of Berid & Schutzbank, LLC and other financial professionals to help ensure you value your assets correctly. If you need help with your divorce proceedings or division of property, please contact our office right away.

Categories: Family Law & Divorce Questions and Questions & Answers.