Let me begin this article by first saying that, as a practical matter, divorce should be a last option for any couple. Before making the decision to divorce I believe that it is much better to try every possible avenue to work out the differences between one another, to try and live with and understand each other as much as possible. However, I realize that sometimes the difficulties may truly be insurmountable. When challenges in a marriage reach a turning point, and all other options have been exhausted, divorce may be the best option.

The goal of this article is to make you aware how property is divided in a Massachusetts divorce, and further, what ways there are to avoid involvement with the court.

The Massachusetts Law that Guides the Judge

Massachusetts General Law, Chapter 208, section 34 is a Massachusetts law dealing with alimony and assignment of the estate among other things by a Probate and Family court in Massachusetts. It is this law that serves as the focal point for a judge when making decisions as to which party should get which property in a divorce.

Avoiding the Judge

When people think of divorce, they likely picture an opportunity to stand in front of a judge and declare the many wrongs which they have suffered at the hand of the other party to the marriage. Then, once the judge has taken the time to soak up these many indiscretions, he or she will deliver a ruling to favor the long-suffering spouse. Unfortunately, as you could probably guess from the tone of my statement, the judge rarely comes to a decision that is so clearly one-sided.

Instead, judges are tasked to apply the factors outlined in section 34 of chapter 208. The judge has the difficult job of determining how property acquired during the marriage should be divided. Technically, a judge can make a determination as to which party to the marriage gets which property any way they see fit. A judge, in Massachusetts, has an extreme amount of discretion in making this equitable division of property. M.G.L. chapter 208 § 34 states, “the court may assign to either husband or wife all or part of the estate of the other, including but not limited to…” The law goes on to identify the type of assets that the court is to consider and the factors used to make that consideration.

Because property division ends with the judge, and because a judge’s personal perspective on the couples is only based on the evidence presented before him or her, and the case law presented at trial, the manner in which property is divided by a judge can be highly unpredictable. It is possible to avoid the judge in a Massachusetts divorce, this is best done by drafting a reasonable separation agreement between the parties. When such an agreement can be achieved between the two couples, a lot of time and expense can be saved. On the other hand, the failure of that agreement because one side will not budge from a position, can lead to a bench trial which can cost anywhere from $15,000 to $40,000 depending upon the complexity of the issues involves, witnesses to be called, etc.

Separation Agreement – The Best Outcome

While achieving a mutually agreed upon separation agreement is a topic for another article, to me, this is the ultimate goal of any couple considering divorce. Perhaps it may help the reader if I describe the basic path that a divorce will take, as follows:

First, either one spouse files for divorce against the other party or both parties file together, jointly.

Option A: One Party Files for Divorce Against the Other. If one party files against another, the reason this occurs is because the one spouse wants to either stop the other spouse from selling or transferring a home or other property, or because that spouse wants the divorce and the other does not.

Option B. Both Parties File for Divorce Together. It is typically the case that the couple wants the divorce, but feelings are quiet enough between the parties that they believe their issues involved in separating the marriage can be ironed out together.

If Option A is chosen, the goal is going to be to arrive at an agreement, a contract of sorts, that spells out who gets what, deals with issues of custody and visitation if children are involved, and tackles any other important matters. If the couple agree and sign this agreement the next step is to proceed to the court for a review of the agreement, and if the judge believes the agreement to be equitable and reasonable, each party goes their own way. The benefit of this path is that the spouses in a Separation Agreement are going to have much more of an understanding of what is reasonable to each of them, than a judge will have. The judge is limited by § 34, and the list of factors to be considered in arriving at an equitable distribution of the property involved.

However, under Option A, if the parties cannot agree on the terms of a Separation Agreement, the case will move into the discovery phase, then potentially to case conference at the applicable Probate and Family court, then a pretrial conference, and if issues remain unresolved….to trial. All considerably expensive, but sometimes unavoidable.

If Option B is chosen, the parties have reached an agreement as to child support, alimony, child custody, and asset division, and progress on resolving these matters are likely to go much more smoothly. Of course, it is often the case that this option is a non-option as each spouse generally does not want to interact with the other, never mind engage in a productive discussion over division of assets and child care.

Getting to a Separation Agreement is by far the best possible outcome for any couple considering divorce. I would argue that a Separation Agreement is preferred even if you are not ready to divorce yet but are able to come to an agreement over how to divide property and other aspects of your marital life.

Contact attorney Richard Gaudet for a discussion on matters of divorce or related family law issues for a thorough evaluation of your circumstances and the legal options available to you.

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