Equitable
Distribution

Massachusetts state law states that assets and debts acquired during the marriage are to be divided should be divided equitably between the parties. This is the starting place for negotiations in a divorce mediation case. You can make trade-offs in mediation–and you may end up with a very unorthodox distribution–but your starting point is the state law.

Most property and income acquired during marriage during marriage is divided equally: fifty-fifty but equitable distribution is not always the same as equal distribution. For example, the value of a home acquired during marriage is determined, and that sum divided equally between husband and wife. Usually personal gifts and sole inheritances that have not been used for marital purposes are not subject to community property distribution and remain the sole possession of the recipient. If you owned your home before marriage and you’ve kept the tittle in your name, but it has been improved or increased in value, the increase in value is community property, but the value of the home itself generally is not.

Equitable distribution in Massachusetts means dividing property and income acquired during marriage according to factors defined as “fair,” which does not necessarily mean sharing equally. States vary in what they include as marital property. In the majority of states, only the property acquired during marriage is considered for equitable distribution; gifts and inheritances are kept separate. In a few states, gifts and inheritances are included as marital property, and in even fewer states, everything ever owned may be included as marital property to be considered for distribution.

Once you determine which property is to be distributed, there is the question of how to do it so that the division is fair. Factors determining how the property is shared can include the contributions of each spouse, both monetary and nonmonetary. If, for example, your spouse is an artist and you entertain gallery owners, potential buyers, or agents, or keep the artwork protected, or do the majority of household tasks so that your spouse can be free to teach art, you have made a significant nonmonetary contribution toward your spouse’s career. If that career is valued as a marital asset, your contribution to its value would be considered in the negotiations for property distribution.