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Property Division Archives

Do I Have To Give My Spouse Part Of My Business In Our Divorce?

asset division, business planning, divorce and assetsWhen spouses are going through a divorce, one thing that always must be addressed is property division. However, when one or both spouses own a business, or even have an interest in a business, property division can be much more complicated. A common question spouses ask is: Do I have to give my spouse part of my business in our divorce? In Massachusetts, the short answer is No, but the answer isn’t that simple.


Under the property division statute in Massachusetts, Massachusetts General Laws chapter 208, section 34, the Probate and Family Court must consider the following factors in dividing the marital estate:


length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties, the opportunity of each for future acquisition of capital assets and income, and the amount and duration of alimony, if any, awarded under sections 48 to 55, inclusive. In fixing the nature and value of the property … Read More »

Does My Spouse Have an Interest in My Business When We Divorce?

divorce and assets Divorce and business, divorce and business partnersIn a divorce, money can be one of the biggest issues spouses fight over. However, when one (or both) spouses own a business, this can be an even more complicated (and sometimes uglier) fight. A common question business owners ask when they are going through a divorce is whether their spouse has an interest in the business. The short answer is yes, but it’s not as straightforward as you think.


Under Massachusetts law, all assets owned by spouses, regardless of whether or not they are joint assets, are marital assets. This can include a family owned business, even if only one spouse has an interest in that business. That means the business is a marital asset that is subject to division in equitable distribution. However, that doesn’t necessarily mean the non-business owner spouse will end up owning the business or having a financial stake in the business through the divorce. Massachusetts General Laws chapter 208, section 34 outlines factors the Probate and Family Court must consider in the division of marital assets. … Read More »

FAQ’s About Divorce in Massachusetts

Here are some common FAQ’s About Divorce in Massachusetts:


Q: Should I file first for divorce?

A: The answer to this question is largely a case-specific answer.


The determination of value of assets, which goes to the equitable division of marital assets pursuant to M.G.L. c. 208 §34, is determined from the date of marriage to the date the Defendant was served. Thus, if the plaintiff intends on acquiring substantial assets in the future, it could be beneficial to file for divorce prior to acquiring these assets.


Additionally, should the divorce case go to trial, the Plaintiff has the right to present their case first, along with the right of rebuttal after the Defendant has presented his/her side of the case. Being able to be the party to present his/her case first at trial can set the tone of the trial, and leave an impression on the judge.


However, divorce is also a very emotional and personal decision. If you believe that you are not emotionally ready to file for divorce, or that the marriage may still … Read More »

Who gets the house in a divorce?

Who gets the marital home in a divorce?Q: I’m getting a divorce. Who gets the house when the divorce is finalized?

A: The short answer is, it depends. There are many factors that must be considered in determining who gets to keep the marital home during a divorce.

Q: What factors are considered in determining who gets the marital home in a divorce?

A: One of the biggest factors is finances. If either or both spouses want to keep the marital home, the court will consider whether he/she can afford the operating costs of the marital home. Also, the court will consider whether the spouse who wishes to retain the marital home can afford to buy out the other spouse based upon the remaining equity in the marital home.

Q: How does a spouse buyout the other spouse’s equity in the marital home?

A: This can be done in a few ways. First, the spouse who retains the marital home can take out a mortgage, or refinance the existing mortgage and … Read More »

Property Division in a Divorce

Property Division in a DivorceQ: What is martial property?

A: Massachusetts law has a very broad definition of marital property. It defines marital property as property owned by either or both spouses, whether acquired during the marriage, or prior to the marriage. This means that if property is in only one spouse’s name, or was bought before the marriage, it is marital property and subject to property division in a divorce.

Q: What kinds of property are included property division in Massachusetts?

A: The short answer is EVERYTHING. This can include:

Real estate Bank accounts Stocks and bonds Retirement accounts Pensions Investment and brokerage accounts Personal Property Vehicles (including airplanes, boats and yachts and recreational vehicles) Business interests Interests in trusts Inheritance vested and nonvested benefits rights military retirement benefits Profit-sharing Annuity Deferred Compensation Insurance policies (with cash surrender value) coin collections frequent flier miles Professional baseball season tickets country club memberships Artwork Lawsuit proceeds Timeshares Income tax refunds Q: How does the law decide how the property is divided in a divorce?

A: There are several factors that must … Read More »

Winning the Lottery and Then Getting Divorced

lottery articleThe odds of any person winning the lottery are very slim. However, if someone does win the lottery, and he/she is married at that time, under Massachusetts law, the lottery winnings are a marital asset. Under Massachusetts law, all property owned by one spouse individually, or both spouses jointly, is considered marital property. That means, if after winning the lottery, the spouses then divorce, the lottery winnings are part of the marital estate to be divided in the divorce; there is no presumption that the spouse who won the lottery gets to keep all of winnings.

If the spouse who won the lottery wants to protect these winnings from being divided in a divorce, then the spouses can negotiate and enter into a Postnuptial Agreement. A Postnuptial Agreement is like a Prenuptial Agreement, but it is drafted and signed after spouses marry. In such an agreement, the parties can to agree to include or exclude certain assets in the marital estate in the event of a divorce or separation. In Massachusetts, Postnuptial Agreements are considered legally binding and valid as long as the agreement is fair and reasonable, and there has … Read More »

Divorce and Money

money treeyou’re in the process of getting a divorce, money issues are likely to be a key point of discussion. Whether you’re the spouse of a billionaire or part of a working class couple trying to divide up the bills, money is contentious.

That’s the central point of my latest book, The New Love Deal ( co-written with famed Chicago divorce attorney Gemma Allen, and Judge Michele Lowrance who spent 20 years handling domestic relations cases in divorce court and is now a divorce mediator.

Even after a divorce or separation, you could face money problems stemming from your relationship unless your deal covers these issues — ranging from intertwined debt obligations (a mortgage, credit card balances) to future support and property division. Always listen to your legal counsel as to the laws that apply to your situation in your state of residence.

1. Tax consequences: A division of property as part of a divorce is generally not taxable to either party. But if instead of dividing marital property one spouse agrees to accept monthly maintenance (alimony), that income will be taxed as ordinary … Read More »

You thought it was until death do you part, but now you’re headed to divorce court.

sad seniorsThe divorce rate for those ages 50 and older has doubled over recent years.

Dubbed “gray divorce” by some, calling it quits during your senior years may no longer be a decision that raises eyebrows. The divorce rate for those ages 50 and older doubled between 1990 and 2010, according to a study by Bowling Green State University sociologists.

While remarriages tend to have higher divorce rates, it isn’t only people on their second or third spouse who are seeing their marriage dissolve. The BGSU study published in The Journals of Gerontology found that 48 percent of divorcees were in their first marriage.

If it looks like your happily ever after is ending, here are seven things family law experts say you need to know.

1. Alimony is almost always granted after long-term marriages.

While younger couples may have temporary alimony agreements that provide financial support for their ex, often only long enough for lower earning spouses to get back on their feet, it’s a different situation for those exiting long-term marriages. “In … Read More »

Resetting Your Retirement After Divorce

retirementWhen couples divorce, long-term financial priorities sometimes receive the least attention. Many money issues are about immediate needs – where to live, how to handle everyday expenses and if there are kids, how to support their needs in two households, not one.

This is why retirement planning can face serious obstacles post-divorce. In marriage, a two-earner household has the advantage of splitting living expenses and pooling assets like retirement savings. After divorce, ex-spouses may walk away with their share of joint retirement assets based on how they negotiate that distribution.

However, returning to singlehood means taking on all housing, food, transportation and related costs alone. That generally means less money to save for retirement and other purposes. To assure a comfortable retirement, many experts advise individuals to save and invest over time so they can live annually on at least 70 percent of their pre-retirement income.

Divorce can be tough no matter what the circumstances, but best-case financial scenarios typically emerge from thorough, individualized pre-divorce planning. That generally requires each spouse to retain their own financial advisors much as they would their own legal … Read More »

9 Tips for Dividing Your 401(k) During a Divorce

401kDividing a 401(k) for a divorce settlement is less painful when you know about the plan and take the right steps that ensure both people are satisfied.

A 401(k) plan is marital property, just like other possessions that need to be divided. Here are nine ways you can handle assets in the plan during a divorce:

1. Have your attorney draw up a qualified domestic relations order, also called a QDRO, which will tell the plan administrator how the division should occur, according to federal regulations. The court judge and the plan administrator must sign the QDRO.

2. The instructions and details of the QDRO must be approved and finalized. When the divorce is final, the QDRO must be approved and finalized in order for one party to receive funds from the 401(k). The party could lose most benefits if the spouse with the 401(k) plan dies or retires before everything is approved and finalized. Make sure the attorney files the QDRO as soon as possible during divorce proceedings.

3. Talk about your 401(k) with the plan administrator when you decide on a divorce. The plan may have requirements or options to … Read More »

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