Property Division Without Prenup In Massachusetts

Jul 23, 2023 | Massachusetts Prenuptial Agreements, Prenuptial Agreements

Divorce is tough, and one of the stickiest issues is divvying up the assets. When a couple decides to call it quits, deciding who gets what can turn into a real headache. You know, in an ideal world, you would have sorted it all out with a prenuptial agreement (prenup) before tying the knot. That way, you’d have a clear plan for splitting things up and you wouldn’t have to worry about the default laws on property division in your state. 

Whether you’re just curious about property division laws or knee-deep in the messy process of splitting things up without a prenup, stick around. We’ve got the scoop to make this part of your divorce journey a little less bumpy.


Understanding Property Division in Massachusetts

In Massachusetts, property division is governed by equitable distribution laws. Equitable distribution is a legal framework that 41 states utilize when dividing up property.  Laws aim to achieve a fair and “equitable” division of property, not necessarily an even 50/50 split. Massachusetts courts (and any other equitable distribution state courts) take into account various factors laid out by the state to ensure a fair outcome for both parties. 

Factors Influencing Property Division

When dividing property without a prenup in Massachusetts, the court considers 18l factors including:

  • Length of marriage: The duration of the marriage typically plays a role in property division, as longer marriages often entail a more intertwined financial situation.
  • Conduct of the parties during marriage: The behavior and actions of each spouse during the marriage may impact the division of assets. 
  • Age and health of each party: The age and health of each spouse are relevant factors, as they can affect their ability to earn income or manage assets independently.
  • Station of the parties during marriage: The social and economic standing of each spouse during the marriage can influence the division of assets. Disparities in income or lifestyle may be taken into account.
  • Occupations: The professions of each spouse may be taken into consideration when splitting up property, especially if one spouse contributed significantly to the marital estate through their career.
  • Amount and sources of income of each party: The income levels and sources of income for both spouses are considered. Disparities in earnings can influence how much each person gets.
  • Vocational skills and employability: The vocational skills and employability of each spouse may be considered because it relates to their ability to generate income and support themselves after the divorce.
  • Estates and liabilities: The assets and debts owned by each spouse are typically evaluated, including properties, investments, debts, and more.
  • Needs of each party: What are the needs of each spouse? This may include housing, financial support, and maintaining a certain standard of living.
  • Current and future needs of minor children: If there are minor children involved, their current and future needs, such as education, healthcare, and living expenses are typically taken into consideration.
  • Opportunities for acquiring capital assets: The opportunities available to each spouse for acquiring capital assets in the future may be looked at by the court, as well. This considers their potential for financial growth and stability.
  • Contributions to the acquisition, preservation, or appreciation of estates: The contributions made by each spouse to acquiring, preserving, or increasing the value of assets are usually considered. This includes financial contributions as well as non-financial contributions, such as homemaking or childcare.

It’s important to note that the division of marital assets is a complex process, and the weight given to each factor may vary depending on the specific circumstances of the case.


The Role of the Court in Property Division

The court plays a significant role in property division, ensuring fairness and equity. Judges have a level of discretionary power when determining how assets should be divided, weighing the circumstances of the case and considering the needs and interests of both parties.

For example, the judge presiding over your case will look at the set of factors (the ones listed above) and the circumstances of YOUR specific situation to make a decision on how property is split up. It may be 50/50 or it may be a disproportionate division, like 60/40, 70/30 or any other combination split that results in an equitable outcome based on the above factors


Property Division in Massachusetts WITH a Prenup

If you get a prenup in Massachusetts, the way your property will be divided will be whatever your prenup says. That’s right, you can actually override the Massachusetts equitable distribution laws and make your own. As long as your prenup is valid and enforceable (or, you as a couple decide to follow it, which you should be doing anyway), you can dictate how you want your property to be split up.

If you want to keep your retirement fund, house, Monet painting, or any other asset, just make sure to mark it as SEPARATE property in your prenup. Anything that is not separate property is generally considered marital property. If it’s marital property, it will be split according to the Massachusetts equitable distribution laws. 


Example Scenario of Property Division in Massachusetts WITHOUT a Prenup

To illustrate property division without a prenup in Massachusetts, let’s consider a hypothetical case. 

Let’s say John and Jennie were married and lived in Massachusetts for their entire marriage. Jennie files for divorce after 20 years of marriage. Jennie is a stay-at-home mom and John was the breadwinner as a CEO. They have two minor children. With just this information, the court would look at the length of marriage (20 years), occupations (stay-at-home parent and CEO), employability (Jennie hadn’t worked in 20 years), income (how much John makes versus any income Jennie has), the needs of the minor children, and spousal contributions (how much did each spouse contribute to the marriage). Based on these factors, the court would decide how to split the property. 


Property Division Without Prenup In Massachusetts

Frequently Asked Questions (FAQs) about property division in Massachusetts

Q: What happens if there is no prenuptial agreement in Massachusetts?

A: In the absence of a prenuptial agreement, Massachusetts follows the principle of equitable distribution. This means that assets will be divided in an equitable way, taking into account various factors such as the duration of the marriage, financial contributions, and future earning potential.


Q: Can a prenuptial agreement be created after marriage in Massachusetts?

A: No, but you can create a postnuptial agreement in Massachusetts. While it is preferable to establish a prenuptial agreement before marriage, as they tend to be more enforceable, couples can still clarify property division and other matters through a postnuptial agreement.


Q: What factors are considered by the court in property division?
A: The court considers various factors, including but not limited to, the duration of the marriage, each spouse’s financial contributions, future earning potential/employability, the needs of minor children, the age and health of the spouses, and more. These factors help the court determine a fair distribution of property.


The bottom line is that if you are getting a divorce in Massachusetts without a prenup, your property will be divided according to equitable distribution principles laid out in Massachusetts law. If you get a prenup, you can provide clarity and take control of how property division should work for you. You can override the default laws of equitable distribution and go by your own rules (as long as you agree on those with your partner). 


You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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