Division of Marital Property

There are many factors taken into consideration when property is divided in a divorce action. The length of the marriage and whether the assets were accumulated by a spouse before the marriage are only some of the factors. Further, once the assets are divided in a separation agreement or at trial, absent fraud, it cannot be undone. Under Massachusetts General Laws, Chapter 208, Section 34, the court can award to either spouse all or a portion of the estate of the other. The estate can include all tangible and intangible property. The court considers factors such as the age, occupation, employability, health, income and liabilities of each of the parties in dividing the assets. The court further considers the parties ability to increase their income and assets in the future and the needs of the dependent children. The contribution of a spouse as a homemaker is also a factor. Lastly, the court may consider the contribution of each of the spouses in obtaining, increasing and maintaining their property in dividing the assets.

The court may assign the property of one party to another regardless of whose name it is in. Property subject to division is not limited to property acquired during the marriage but includes all property whenever and however acquired. Rice v. Rice, 372 Mass. 398, 400 (1977). Property includes anything of value. It can include unconventional assets such as frequent flyer miles or season tickets to a sporting venue.

In determining the date of division for valuation of an asset, the date of the divorce usually determines the asset value. However, the date of separation may be appropriate in circumstances when the other party has not contributed to the value of the marital estate from date of separation to the time of the divorce.

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