One of the most significant and contentious questions in a divorce is, “Who gets to keep the house?” In Massachusetts, dividing assets, including the marital home, is governed by specific laws and procedures to ensure fairness.
Massachusetts aims to divide marital assets, including the home, fairly and equitably during a divorce. This doesn’t mean splitting everything 50/50. Instead, to reach a fair outcome based on various factors such as each spouse’s financial situation, contributions to the marriage, length of the marriage, age, health, employability, and the needs of any children involved.
Key Takeaways
- According to the law, only assets considered marital property are subject to division. Marital property includes assets acquired by either spouse during the marriage, except those received as gifts, inheritances, or specified as separate in a prenuptial agreement.
- Massachusetts is an “equitable distribution” state, which means that the court will divide marital property in a way that it deems fair but not necessarily equal. Unlike “community property” states, where assets are split 50/50.
- If you and your spouse can’t agree on what to do with your house, the judge will decide based on your circumstances. If the judge awards one spouse the house, they may award a retirement account to the other spouse.
Understanding Property Division in Massachusetts Divorce
According to the law, only assets considered marital property are subject to division. Marital property includes assets acquired by either spouse during the marriage, except those received as gifts or inheritances or specified as separate in a prenuptial agreement.
However, if you purchase a home before marriage, you don’t have full rights to the property after a divorce.
Meaning, each of you would get credit for any equity in your respective houses up until the date of the marriage and would equally share any equity accrued after the date of the marriage.
Massachusetts is an “equitable distribution” state, which means that the court will divide marital property in a way that it deems fair but not necessarily equal. Unlike “community property” states, where assets are split 50/50, Massachusetts judges have more discretion in determining what constitutes an equitable division.
Marital vs. Separate Property
To understand how the house is divided, it’s crucial to distinguish between marital and separate property:
- Marital Property: This includes assets acquired by either spouse during the marriage, regardless of whose name is on the title. If the house was bought or paid for with marital funds, it’s typically considered marital property.
- Separate Property: Assets owned by one spouse before the marriage, or those received as gifts or inheritances, may be considered separate. However, if separate property was used for marital purposes, such as paying for the home’s mortgage or renovations, it could be treated as marital property.Factors Considered in Dividing the Home
Massachusetts courts consider a variety of factors when deciding how to divide the house, such as:
- Length of the Marriage: Longer marriages might result in a more equal split, while shorter ones could lead to different outcomes.
- Contributions to the Marriage: Both financial and non-financial contributions, like homemaking or raising children, are taken into account.
- Age and Health of Each Spouse: If one spouse is significantly older or has health issues, the court may weigh this in their favor.
- Income and Employment: Each spouse’s earning capacity plays a role in determining who gets the house or whether the property should be sold.
- Needs of the Children: If there are children involved, the court often prioritizes their best interests, which might mean awarding the house to the custodial parent.
Options for Dividing the Home in a Divorce
There are several ways that the house can be handled in a Massachusetts divorce:
1. One Spouse Keeps the House
In some cases, one spouse may buy out the other’s share of the house. This means that the spouse who wants to keep the home refinances the mortgage in their name and pays the other spouse their share of the equity. This option is common when one spouse has a strong emotional attachment to the house or wants to maintain stability for the children.
2. Selling the House and Splitting the Proceeds
Selling the house and dividing the profits is a straightforward solution that allows both spouses to start fresh. This is often the preferred option if neither spouse can afford the house on their own.
3. Deferred Sale
Sometimes, the court may order a “deferred sale” of the house, allowing one spouse (often the custodial parent) to live in the home for a specified period, such as until the children turn 18. After this period, the house is sold, and the proceeds are divided.
4. Co-Ownership After Divorce
In rare cases, spouses may agree to retain joint ownership of the home, even after the divorce. This arrangement requires a high level of cooperation and works best if there are children involved.
Who Pays the Mortgage During a Divorce?
During divorce proceedings, it’s not uncommon for both spouses to continue paying the mortgage or for one spouse to take over payments temporarily. The court may issue orders about who is responsible for the mortgage payments until the divorce is finalized or until the house is sold. In some cases, a temporary arrangement is worked out where both spouses contribute, or one spouse lives in the house and covers the payments.
Staying In The House During Divorce
Staying in the house during a divorce can be a strategic move, especially in Massachusetts. Leaving the home doesn’t mean you forfeit your rights to it or custody of your children, but it might give your spouse an advantage. Judges often lean toward maintaining the status quo, and if one spouse remains in the house, that could influence decisions.
Leaving could also make it easier for your spouse to drag out the process since you might face restrictions on accessing the property, even for retrieving personal belongings or handling maintenance. While a judge typically doesn’t base their decision solely on who lived in the house during the divorce, staying might help keep things more balanced, mainly if you aim to buy out your spouse’s share later. Ultimately, it boils down to whether you can afford the buyout.
Contentious Divorces
We’re not lawyers, but we’ve bought plenty of properties after divorce. Here’s what we’ve heard many a divorcee say they wish they’d done.
Seek Legal Representation Early
One of the most crucial steps in a contentious divorce is securing a competent attorney right away. A high-quality lawyer, although expensive, can make a significant difference in how your case progresses. It’s important to be proactive and find a reputable attorney who can navigate the complexities of your case. If your spouse lawyers up first, they may gain an advantage, so don’t delay. It’s better to invest in legal support now than face bigger losses later on.
Maintain Detailed Records and Documentation
In any divorce, particularly contentious ones, you need to meticulously document everything. Keep a record of all communications with your spouse, interactions with your children, and financial transactions. This can protect you if your spouse’s lawyer tries to twist the narrative. For example, if accused of being late with child pick-ups, your documentation can serve as evidence to refute such claims. Additionally, gather copies of all relevant financial records, photographs, and legal documents early on to ensure you have what you need.
Limit Contact and Stay Civil
During a contentious divorce, it’s essential to limit contact with your spouse and communicate only about necessary topics, such as arrangements for your children. Keep all communications polite, civil, and in writing, as this could be reviewed by a judge if needed. Avoid discussing legal matters directly with your spouse and let your attorney handle the negotiations. Staying calm and civil will strengthen your case, even if the situation becomes emotionally charged.
Know the Legal Process and Follow Orders
Familiarize yourself with Massachusetts General Laws (MGL), especially sections 31 and 34, which cover divorce and custody matters. Understand that the judge’s primary focus is the best interests of the children and the equitable distribution of assets. Pay close attention to any temporary domestic orders issued by the court, and ensure you follow them to avoid jeopardizing your case. The more informed and compliant you are with legal processes, the stronger your position will be in the final outcome.
Seeking Legal Guidance
If you can afford an attorney, find a reasonable attorney and pay your bills on time. If you’re both tight for cash, you can settle with a mediator without involving layers. Most family lawyers will want to settle out of court without litigation. They aren’t expecting anything beyond their retainer and would rather get your case of your desk ASAP.
Good Divorce Attorneys In Massachusetts
Conclusion
Navigating who gets the house during a divorce in Massachusetts can be complex, but understanding the laws and preparing accordingly can make a big difference. Judges aim for equitable distribution, considering various factors like financial status, contributions, and children’s needs.
To improve your chances of a favorable outcome, seek competent legal counsel early, document everything meticulously, and stay civil during the process. By being proactive, informed, and strategic, you’ll be better equipped to protect your interests and make sound decisions about your future. If you need more guidance, contact an experienced Massachusetts divorce attorney.
