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Posts Tagged divorce and equal division of property

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 »



Financial Planning For and During a Divorce

What are the legal fees of divorce?A divorce brings about many changes in a person’s life. One of the most significant changes is the financial impact of a divorce. Spouses go from having a combined household with (usually) two separate incomes, to living apart, and supporting themselves on their own. If you are contemplating a divorce, or have already filed for divorce, there are different actions you can take to plan for your own financial future after a divorce.

 

Create a Budget:

Review your household expenses to see what your weekly/monthly expenses come out to. In addition to including the usual expenses (i.e. mortgage/rent, utilities, heat, cable TV, telephone, groceries, clothing, etc.), don’t forget to include other typical expenses, such as uninsured medical expenses, motor vehicle expenses, child care, vacation and entertainment, education costs for yourself and your children.

Once you have your budget, look at what your income is, and what it is likely to be at the end of the divorce. Don’t forget to factor in any alimony and/or child support that you may be paying or … Read More »



Can I Modify My Separation Agreement?

Can I Modify My Separation Agreement?It is not uncommon for a spouse to want to modify certain provisions of his or her Separation Agreement after a divorce. As time goes on, circumstances will most certainly change for the former spouses. However it is important that spouses make any changes through the Probate and Family Court, and not through a private agreement, as private agreements are not enforceable through the courts.

 

Before a spouse can seek a modification in the court, he/she must first ascertain if the provision he/she wants modified can be modified. In Massachusetts, Separation Agreements either “merge” or survive”. When a separation agreement “merges” it means that all provisions in the agreement may be modified through a Complaint for Modification, upon a showing of a material change in circumstances. When a separation agreement “survives” it means it has its own independent legal significance, and can only be modified in the rarest of circumstances. The courts have stated that there must be “countervailing equities” to modify a surviving agreement. Although the term “countervailing equities” has not exactly been defined by the court, … Read More »



Financial Planning For and During a Divorce

financial planning divorce

A divorce brings about many changes in a person’s life. One of the most significant changes is the financial impact of a divorce. Spouses go from having a combined household with (usually) two separate incomes, to living apart, and supporting themselves on their own. If you are contemplating a divorce, or have already filed for divorce, there are different actions you can take to plan for your own financial future after a divorce.

 

Create a Budget:

Review your household expenses to see what your weekly/monthly expenses come out to. In addition to including the usual expenses (i.e. mortgage/rent, utilities, heat, cable TV, telephone, groceries, clothing, etc.), don’t forget to include other typical expenses, such as uninsured medical expenses, motor vehicle expenses, child care, vacation and entertainment, education costs for yourself and your children.

Once you have your budget, look at what your income is, and what it is likely to be at the end of the divorce. Don’t forget to factor in any alimony and/or child support that you may be paying or receiving.

Based upon … 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 »



Postnuptial Agreements

Dear Clients and Friends,

Properly executed pre-nuptial agreements have been enforceable for sometime in the state of Massachusetts. These agreements are entered into between the couple before they are married to protect assets each party had at the time of marriage. Here are Amaral & Associates, P.C., we prepare pre-nuptial agreements on a regular basis on behalf of our clients.

Post-nuptial agreements, however, are entered into after a couple is married. They were considered invalid in the United States at one time and the present case law in Massachusetts has been uncertain as to the current validity until recently. Based on a July 16, 2010 case, entitled Ansin v. Cravin-Ansin, a Mass. Supreme Judicial Court case, the court for the first time enforced a post-nuptial agreement. Therefore, it is now possible for a couple to remain married yet prepare an agreement regarding how their assets are to be divided in the event of a divorce. This agreement could be helpful for parties who are thinking of getting a divorce or are afraid of losing additional assets if the marriage were to be extended. By having an agreement in advance, neither party would … Read More »



PreNups: Myths v. Truths

There are several myths regarding Pre-Nuptial Agreements that prevent many couples from broaching the topic. Keep reading to find if a Pre-Nup is right for you!

MYTH #1: ONLY PROTECT WEALTHIER SPOUSE

False. Pre-Nuptial Agreements must be fair for both parties. If the Agreement is found to be unconscionable by the Judge, it will not be honored.

MYTH #2: ONLY FOR THE RICH

False. Even if you and your spouse do not have much now, over time your income and assets will most likely increase. Your home and retirement accounts will probably become more valuable and you may even inherit additional money or assets from your families. A Pre-Nup can protect the accumulated wealth and decide how it will be dealt with.

MYTH #3: MUST COVER EVERYTHING/ONLY USEFUL IF YOU SPLIT

False. The agreement can be as detailed or broad as you like. It can be limited and cover one specific asset or inheritance, or deal with a wide range of areas. You may also specify in the Pre-Nup issues that you will encounter during the marriage, such as the usage of … Read More »



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