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Division of marital assets doesn't have to be equal

Since Massachusetts is not a community property state, divorcing couples may be surprised to learn that marital assets do not need to be divided equally, just equitably. Couples seeking divorces should try to work out a division of marital property first. If they cannot work out a property settlement, the courts will do it for them.

Marital property consists of assets and debts a couple accumulates while they are married. It generally does not include property either spouse inherited, owned before the marriage or was given as a gift. Separate property can be difficult to determine if the spouse who owned it contributed it to marital property, such as a joint bank account.

If the court makes the property division, it will take certain factors into consideration. These include the length of the marriage; the health and age of each spouse; sources of income as well as jobs and employability of each spouse; and each spouse's needs and obligations. If one of the spouses demonstrated misconduct during the marriage, that factor also may be considered.

While these factors apply to any couple getting a divorce, they are especially relevant in high-asset divorces when one spouse has higher assets than the other. Avoiding letting the court make the property division thus becomes more important, as one spouse may possibly gain significantly more than the other. Each spouse may want to work with their own financial planner and family law attorney to work out a settlement that is fair to both of them, rather than letting the courts make a decision that might leave one or both spouses unhappy.

Source: Findlaw, "Massachusetts Marital Property Laws", November 24, 2014

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