Property Division

What’s the difference between marital and separate property?

In the state of Massachusetts, the court decides what property is divided in the situation of divorce. This is often the greatest concern of both parties, aside from child custody agreements. A husband or wife might also be required to pay alimony to the other spouse, if circumstances are correct for that to occur. Property division depends greatly on whether or not the assets are considered marital property or separate property. Generally speaking, most states divide all marital property fairly and evenly between the two divorcing people. Under some circumstances, special consideration might be taken that benefits one spouse over the other. This includes if children are involved in a situation that included abuse. Marital property is any property that was assumed by the couple or as individuals during the marriage. Some property that belonged to one or the other spouse before the marriage might also be considered marital property during a divorce. For this reason, it is important to protect any property that you might have before entering marriage with a prenuptial agreement. Separate property includes any and all assets that are truly owned by one individual, rather than the couple together. This includes anything that is outlined in the prenuptial agreement, as well as property that was specified as belonging to one person during the marriage. The division of property can be a stressful process. Going to divorce mediation could make this easier on both parties. If you have additional questions about property division, speaking to an experienced.

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Mediation is a good route for property division in Massachusetts

Even if you were the party who initiated the process, going through a divorce is often one of the most painful and stressful events in a person’s life. You must suddenly find a new way of living, split all assets fair and equally and, if you have children, make child support arrangements. Though most people set out to make their divorce as civil and stress-free as possible, the process often ends up spawning many disagreements. One of the best ways to work through a divorce in Massachusetts is mediation. This can be great for settling the division of assets and property. Mediation is a route that is used to come to agreements that work for both parties without the need of a lengthy courtroom process. When a divorce case goes to court, property division is placed in the hands of the judge. This judge, more often than not, does not know the divorcing parties on an individual basis. Property that is important to you might be lost. Going through mediation lets you have half the control over what happens to the property that you previously co-owned with your ex-spouse. The two of you will sit down together with a professional mediator and outline goals so that you can seek solutions. By the end of the mediation process, assets will be fairly divided in a way that both parties agree with. This removes a great deal of time and stress. If you are going through a divorce, mediation might be the

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What determines if a prenuptial agreement in conscionable?

Prenuptial agreements by their nature may not be equitable in the same sense as separation agreement entered into upon a divorce. Massachusetts law as interpreted by its courts holds that one spouse relinquishing claims to the existing assets of a future spouse – even if those assets are substantial – does not necessarily mean that a prenuptial agreement is invalid on its face. Thus, it is possible for a prenuptial agreement to be one-sided in nature, and to leave one spouse in a position after the divorce that may be less than what he or she had during the marriage. Instead, the legal test of the conscionability of such an agreement is whether it strips the spouse contesting its validity of substantially all marital interests. The considerations underlying conscionability include whether either party to the prenuptial agreement engaged in fraud, or failed to fully and fairly disclose assets, or in some other way took unfair advantage the other at the time the agreement was executed. For many years courts in Massachusetts used the term “fair and reasonable” to describe the requirement that a prenuptial agreement should be fundamentally fair even if it is not as balanced as a separation agreement might be, but they now use the term “conscionability” instead. The drafting of a valid, conscionable prenuptial agreement, particularly when the prospective spouses are significantly unequal in the income and assets that they bring into the marriage, can be fraught with legal peril if it is done in a way

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How adultery affects property division

One of the biggest news stories in the past few weeks has been the unfolding story of the hack of Ashley Madison. Ashley Madison is a site on which married individuals can find someone with which they can have an affair. Though adultery is not illegal, it is typically regarded as a terrible act. With the hack, about 37 million people have been exposed as cheaters, including many in Massachusetts. Briefly, a group called The Impact Team threatened to publish the data they had gathered by hacking Ashley Madison unless changes were made. Specifically, they wanted the site to disable the “full delete” feature, which allows users to wipe away any trace of their presence on the site. Ashley Madison refused, and the data was released for public consumption. As such, many couples in Massachusetts will likely be looking for a divorce in the next few months as their partner is exposed is a cheater. It is important to understand exactly how adultery plays into the divorce process, especially when it comes to dividing assets. In essence, adultery is a valid reason to grant a divorce in Massachusetts. But, it has no bearing on dividing marital property. The only exception is if the unfaithful partner spend large amounts of marital money on the affair. Otherwise, the infidelity is disregarded. Anyone who is considering a divorce due to adultery or any other reason may benefit from speaking with an attorney. A divorce lawyer may be able to provide in-depth information and

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Pets and property division

In a Massachusetts divorce proceeding, property is divided equitably, based on each partner’s income and other factors. One piece of property is often overlooked, though: your pets. Of course, thinking of your pets as property may feel as terrible as putting your children in the same category. They are part of the family, after all. The courts understand this, and have created a sort of mixture of property division and custody when it comes to your dog, cat or other animal. If one partner does not want to give up the pet, it is possible to create a sort of co-ownership, including visitation rights and other aspects. But, just like in a co-parenting scenario, a co-ownership means both parties are equally responsible for buying food, providing healthcare and the like for your pet. But if one partner wants total ownership, things can get a bit tricky. It often comes down to separate versus communal / marital property. If the couple bought the animal together, this is often grounds enough for co-ownership. However, if one spouse brought the pet into the marriage, or received it as a gift, it could be argued that it is separate property and therefore not subject to shared rights. The “gift” aspect is often the most complicated, as it could be implied that one spouse bought it for the other with the notion that it would become marital property. Like any other kind of property division dispute, pet ownership can be complex. As such, it can

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Does equitable distribution in Massachusetts mean equal?

The termination of the marriage is rarely the most hotly contested aspect of a divorce. Chances are that by the time the decision has been made to file for divorce, neither party is prepared to spend a lot of time or money to keep the marriage together. Property division issues become important because they affect where each of the spouses will live, their standard of living, retirement plans and other post-divorce aspects of their lives. It is important, therefore, to understand how the courts in Massachusetts handle the division of assets in a divorce. Equitable distribution refers to the method by which Salem courts determine how property that the parties acquired during their marriage should be allocated in the divorce. There are several issues that must be dealt with, including how the property was acquired, when it was acquired and the contributions each of the spouses made to acquiring or improving it. One thing that is clear under the law is that equitable distribution does not impose any obligation on judges to order an equal property division. The law asks judges to consider a number of factors in deciding on a distribution that would be equitable under the circumstances. These factors include: How long the parties were married to each other The age and health of the parties Whether the parties are working and their incomes relative to each other The employability of the parties and their vocational skills The needs of dependent children Non-economic contributions by a spouse who

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Divorce and property division

Spouses preparing for divorce might benefit from understanding more about some of the factors that can dictate how real estate assets are allocated by a formal proceeding. The outcome of property division typically depends on the state laws governing the divorce. Many separated spouses struggle with determining how much each party is entitled to receive from the marital estate. State laws may dictate whether divorcing spouses must split the value of the home equitably, or if one party is entitled to keep the property in its entirety. Some spouses are successful in avoiding contentious disputes and lengthy proceedings by selling their property before filing for divorce. When a spouse is unable to sell a house before filing for divorce, it may be used against them as leverage in the negotiations or formal hearing. Dividing the property equitably is the primary point of contention for many divorcing couples. Often times, dividing the proceeds from the sale of the home is far easier than negotiating the rights to retain the property. Spouses may also benefit from recognizing the significance of additional costs that are attached to retaining the home, such as the commission for the real estate agent and capital gains tax. Some individuals make the mistake of letting their emotions dictate their decision making while undergoing the divorce process. The emotions often subside, but the consequences of those rash decisions may be everlasting. Divorce lawyers may be able to assist separated spouses prepare for property division. Legal counsel might be able

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The role of artwork in a divorce property division

Massachusetts residents who are seeking a divorce may be interested in some information on how artwork is treated at the end of a marriage. Depending on when it was created, the pieces may be up for grabs when marital property is divided. When a couple makes the decision to divorce, they need to go through the property division process and divide their existing marital assets. When one of the spouses is an artist, they may be unclear about what to do with their artwork. An artist often believes that their works belong to them, because they created the pieces. In the eyes of the law, however, the artwork itself is simply another piece of property owned by the couple. Because of this, the artwork is subject to the same equitable division principles as the rest of the former couple’s assets. Artwork presents complex property division issues due to its often-subjective nature. A monetary value needs to be assigned to each piece by an appraiser or gallery owner. In addition, any licensing agreements for the artwork created by one of the parties needs to be included as property and revenue that belongs to the marriage. If artwork was created prior to the marriage, though, it will most likely not be part of this marital property division. Failure to properly account for the value of this artwork could open the creator up to allegations of fraud and could end up losing them all of that property. To avoid this, legal counsel may

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