Divorce Property Division FAQs
From the family dog to coin collections, there are a lot of items that spouses can accumulate over the course of a marriage. All of these items, even pre-marital property, will need to be divided during a divorce. In this article, we highlight some of the most frequently asked questions that we receive regarding the division of property in a divorce.
*Note* It is a widely held misconception that division of property in a divorce will result in both parties receiving 50% of the marital estate. Massachusetts is an “equitable division” state. This means that the assets and debts of the marital estate must be divided fairly, which does not always translate into equally. There are many factors that the court considers in assigning property to either spouse including the length of the marriage, 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. Other cases may deal with inherited property and a further analysis of “co-mingling” the inherited funds may be necessary. Suffice it to say, this is not a “one-size-fits all” process.
Q: What happens to the marital home?
A: In some cases, one spouse will retain sole ownership of the marital home by “buying-out” the other spouse’s equity interest in the property, which is typically determined by having an appraisal conducted. This amount can be paid out in a variety of ways including refinancing the mortgage to make a lump sum payment to the other party, offsetting the equity by relinquishing other property interests such as in retirement and stock accounts, or through an alimony buy-out. Other parties agree to delay the sale of the marital home to allow the children to spend more time in a familiar environment. Ultimately, if the parties cannot agree on what to do with the house, the court can order a forced sale of the home. Sometimes, both parties want to sell the marital home, split the profits, and start fresh in a new space.
Q: Who gets to keep our pets?
A: Although pets can feel like family, in the eyes of the law, they are viewed as personal property. As such, domestic pets and livestock will be divided between the parties as part of the equitable distribution of the marital estate. If left to the court to decide, ownership of animals will be awarded to a particular party (just like couches, cars, and dinner plates), and that spouse will be solely responsible for the expenses of the pet. In settlement negotiations, parties can agree to more creative and alternative ownership and visitation arrangements, such as having a cat split time between two residences with the parties equally paying for the expenses of the pet.
Q: I drive a vehicle titled in my spouse’s name. Can I keep my car?
A: It is not uncommon in divorce cases for vehicles to be titled in Party A’s name while Party B has been the primary user of the vehicle for several years. Typically, each party will keep the vehicle that s/he have customarily driven during the marriage and the car will be retitled. If there is a difference in the equity amounts between the vehicles, that can be offset in the overall division of the marital estate.
Q: How do we divide our tangible, personal “stuff” in the house?
A: You do not want to pay attorneys to fight over the division of ordinary household goods such as kitchen utensils, grills, snow blowers, tools, linens, etc. as you would likely be able to buy brand new items for the amount that you would have to pay in attorney’s fees to sort this all out. Thankfully, most parties are able to reasonably divide personal property. If that is not possible, a list of all the contested items can be made and the parties can take turns picking items from the list that s/he wishes to keep. Other parties may engage with an arbitrator to make a binding decision about who gets what. If an item has particular sentimental value, be sure to include that in your reasoning for why you wish to retain that property. If you are seeking to divide the value of personal property fairly equally, the value of the item is depreciated (i.e. what would somebody pay to purchase it used on Facebook Marketplace?) and is not the full retail price. One cautionary note— if you are moving out, it may be much more difficult to retrieve items from the marital home after you vacate.
Q: What about valuable collections such as precious metals, artwork, or other collectible items?
A: If the parties cannot agree on the value of a collection, an appraisal can be conducted similar to a real estate appraisal to determine fair market value. The parties can then divide the collection based upon this figure, sell the collection and split the proceeds, or one party can keep the collection in exchange for something else in the marital estate to offset the difference.