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Property division and divorce: Marital vs. non-marital assets

Massachusetts, a no-fault divorce state, is also an equitable distribution state. This means that, barring a prenup, property division during divorce is determined by a judge, who attempts to decide on a fair division of assets. Generally, this means a 50/50 split of both debt and marital assets, but each case is taken on an individual basis, and few situations are without exceptions.

Asset distribution involves the division of marital property. Many people are confused by the difference between marital assets and separate, or non-marital, assets, with some mistakenly believing that the name listed on a deed or title determines ownership. This is incorrect; every dollar, asset, or debt acquired is shared evenly between spouses from the minute they become legally married onward. This rule even applies to investments, pension plans and retirement accounts.

As is generally the case with most rules, however, there are exceptions. Certain assets and debts may be considered separate property and thus not subject to division during divorce. If it can be shown that an asset existed before the wedding and was not mixed in with other assets during the marriage, it is possible that a judge will declare those assets separate and not involved in the divorce property division. Some examples of this could be pre-existing stock investments or an inheritance from a relative to one spouse that was never used during the marriage.

The rules surrounding marital and non-marital debts and assets and their division during divorce can be very complex and confusing. One option to reliably and accurately evaluate the situation would be to seek the counsel of an experienced Massachusetts family law attorney. A divorce lawyer would be able to help assess the information at hand and offer sound legal advice on questions of property division or other divorce issues.

Source:, "Property Division when Divorced", Torree Breen, May 12, 2017

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