Posted by Attorney Bruce Watson
The Massachusetts Probate & Family Court is required to consider so-called “Section 34” factors in fixing the nature and value of the property in determining the division of that property between the parties. Those factors are spelled out in Section 34 of Chapter 208 of the General Laws. The pertinent part of that section reads as follows:
“In fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each of the parties, shall consider the 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 to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit.”
In simple language, in situations where the value and property division is in dispute, the court must consider factors listed in the first and second sentences quoted above and may consider the contribution of each of the parties in the marital acquisition, preservation or appreciation in value of the respective estates, as well as the contribution of each of the parties as a homemaker to the family.
Generally speaking, the shorter the marriage, the more likely the division of assets will reflect the party’s respective estates prior to the marriage. Conversely, the longer the marriage the more likely that all assets are found to be assets of the marriage itself and apportioned equally, unless it is shown that one party failed to contribute significantly within the marriage or where one party’s behavior caused significant damage to the marital estate because of negative personal behavior, for example, a gambling or drug problem that coast a great deal of money or damaged the addict’s ability to earn a living. The court also has authority to structure the division of assets in light of any alimony order awarded under lauder sections of Chapter 208.
In sum, most judges begin with a presumption in a marriage of significant length that a division of assets ought to be 50/50 between husband and wife. A short marriage, on the other hand, will frequently yield a division of assets upon divorce that reflects what each party brought to the marriage initially with some adjustments for appreciation or diminution during the marital period. It is essential to review the marital assets to establish the present value of all assets of both parties as well as to establish how those assets were created or enhanced during the marital period in order to approximate what the court’s division will be.
