If you are considering a divorce or have already separated from your spouse, you have likely considered the ramifications of this decision on your assets and net worth. According to Massachusetts divorce law, the division of marital property must be fair (equitable), which does not necessarily mean that each party will receive an equal share.

When spouses are unable to agree on property division, the family court judge will determine an equitable arrangement.

Separate vs. marital property

Most judges distinguish between separate property and marital property, with separate property defined only as items acquired before the marriage or as gifts or inherited property during the marriage. In general, a judge awards separate property to its owner and divides the rest of the assets, considered marital property, equitably.

Often, particularly in long marriages, it is difficult to distinguish separate property because commingling (mixing of assets) has occurred. For example, a house you owned before the marriage could be marital property if your partner funded significant improvements or made mortgage payments.

Marital property valuation

Assets that fall under marital property must have a monetary value so a judge can divide them fairly. Ideally, you and your spouse can agree on the estimated worth of artwork, vehicles, antiques and other valuable items. In some cases, you may need to hire a professional appraiser to assign value. Sometimes, spouses decide to sell marital property and split the cash proceeds.

The process of property division

When dividing marital property fairly, the court will consider each partner’s age, occupation, employment or ability to become employed, health status, income amount and sources, estate, financial needs and debts and other factors. The length of the marriage, the reason for its dissolution and whether financial irresponsibility occurred also factor into the decision.

If you are concerned about protecting your assets in a divorce, an experienced family law attorney can provide valuable advice. Because the court does not maintain a fixed formula for property division, it is important to understand how your individual circumstances will affect your livelihood.