Property Division


During the divorce, the court will divide the property of the parties. This is the only time the court will make a property determination. Unlike alimony or child support, property divisions cannot be modified in the future. Therefore, it is extremely important to determine all the property a person has and to present the best case for you to receive the largest share of property possible. “Property” includes all property—whether a party received it before or after the marriage. In dividing property, the court considers the same sixteen factors as when determining alimony.The court does not have to divide the property equally, but must make written findings based on the factors of G.L. c. 208, § 34.



There are several things to consider in deciding whether you will ask for a larger portion of the property or alimony.



First, property divisions are final and can never be changed, whereas alimony and child support may be modified in the future. Alimony can be increased, decreased, or stopped altogether.


Second, alimony is taxable income to the person receiving it. There are exceptions to the capital gains taxes for property divisions in a divorce and you should check with an accountant to determine any taxes you would have to pay. The Internal Revenue Service will closely scrutinize payments to make sure they are really meant as alimony and not property settlements. Griffith v. Griffith, 24 Mass. App. Ct. 943  (1987).


Third, property settlements might be discharged in a bankruptcy filing, but alimony and child support orders are not dischargeable. This means that someone under a court order to pay support cannot file bankruptcy and stop paying. In re Michaels, 157 B.R. 190, 195–96 (Bankr. D. Mass. 1993).


 Money that is owed or being paid as alimony, maintenance, or child support cannot be discharged in bankruptcy.However, it must be paid because there is a court order to pay it and it cannot be a division of property that you are calling support or alimony. If one party is paying another person (for the mortgage, for example), instead of support,that may not be discharged in bankruptcy. However, the bankruptcy court will look carefully at what you are calling alimony or support to make sure it is not really something else. See the Bankruptcy Code, Title 11, Chapter 5, Subchapter II, § 523(a)(5); Title 11 Chapter 3, Subchapter IV, § 362. If you file for bankruptcy, the property youreceive in the divorce may become part of your bankruptcy estate, meaning your creditors will be able to get it to pay the debts you owe them.



Marital Home


For most families, the marital home is usually the largest asset. Often the property division requires a sale of the marital home and the parties to divide the equity (the amount of money left after paying the mortgage and other expenses). Experts are usually needed to value the home, although you can testify as to what you think the home is worth based on your own knowledge, property assessments, values obtained by the bank, or by some other means.



Postponing the Sale of the Marital Home


If you have children, and have sufficient assets and income to postpone the sale of the home, it might be possible for you or your spouse (whichever of you has custody of your children) to remain in your home with your children until they are emancipated (i.e., until they turn eighteen, join the military, or are no longer dependent by some other means). The court can order that one parent live in the home with the children until that parent remarries, decides tosell the property, or the children are emancipated. The divorce agreement must provide when and how the proceeds of the sale of the home will be divided (usually a percentage is given to each parent, or one parent is guaranteed a set dollar amount). It is also important to determine who will pay the mortgage, taxes, and repairs to the home until the sale, and how this will affect the division of the proceeds. In any agreement or divorce decree, it is important to state that the spouse is to live in the marital home free of charge; this prevents the other party from forcing a sale of the home or attempting to collect rent. Hartog v. Hartog, 27 Mass. App. Ct. 124 (1989); Stylianopoulos v.Stylianopoulos, 17 Mass. App. Ct. 64 (1983); Downing v. Downing, 12 Mass. App. Ct. 968 (1981) (rescriptopinion);Thompson v. Thompson, 12 Mass. App. Ct. 917 (1981)



Practice Note


If you want to stay in the marital home, you need to make sure you can afford to pay the mortgage, taxes, and repairs with the money you receive each month. Otherwise, the bank can still foreclose on the home, no matter what the Probate and Family Court agreement or judgment says. Many times the home will need to be sold because there simply is not enough money to pay for everything. If you are the spouse who is not living in the marital home, you may want the other person to refinance the mortgage in his or her name because it affects your credit rating if payments are late or missed. You may also propose that you keep certain assets to offset the value of the marital home (you keep a retirement account and investments, while the other spouse keeps the home).



Using the Property as Security to Secure Payments of Child Support



If the parent who is paying child support is not subject to wage assignments (for example, if he or she is self employed or living in another county), you might be able to obtain security for future payments by obtaining a lien on his or her property until your child is emancipated. G.L. c. 208, §§ 28, 36;Levine v. Levine , 394 Mass. 749, 751 n.1 (1985); Pare v. Pare, 409 Mass. 292 (1991).



Bank Accounts



Bank accounts are also considered marital property, but not if the money is held in trust for others, such as children, and is clearly not meant to be money for either party. It does not matter if the account is a joint account or in the name of one of the parties, it is still considered marital property to be divided at the divorce.



Royalties, Copyrights, and Patents



Royalties, copyrights, patents, stocks and bonds, stock options, and business interests including the goodwill of the business are all considered property. Unfortunately you will need an expert to determine their value.



Anticipated Damages from Lawsuit


If one spouse has the right to bring a lawsuit against another person for injuries, debt, or money, this is a chose in action and is subject to the property division, although it may be subject to future division “if and when received.” S.L. v. D.L. , 55 Mass. App. Ct. 880 (2002).





Pensions are considered property to be divided in the divorce. You must find out what pensions the other party has in order to have a fair property distribution. You should seriously consider hiring an attorney to represent you so that you do not waive your right to a pension unwittingly. You also have to be aware of the tax consequences of dividing pensions.



 Payment of Debts


In reviewing the financial affairs of the divorcing parties, the court considers not only assets, but also debts. These debts are considered in relation to the other factors, such as each person’s needs, estate, and income. The court will consider who incurred the debts and who benefitted. The court can determine how a debt is going to be paid between the two parties. Duckett v. Duckett, 27 Mass. App. Ct. 1164 (1989).



Child Support and Custody



Alimony and property division also relate to the issues of child support. In determining the ideal result for you in a divorce situation, you need to decide how each factor will help or hurt you. For example, you may decide to ask for a larger child support award to help with extra child-related expenses rather than ask for alimony. Or you may want extra alimony rather than child support because your children are almost finished with school. You should sit down with pen and paper and make calculations based on the different factors given the facts of your case. (See more at Child support section)



Practice Note



 Child support, alimony, and property division are somewhat related in a divorce. In any divorce, there is a limited amount of money and property to divide between the parents and to support the children. You need to decide, based on the facts of your case, what combination of child support, alimony, and property division makes sense. If you have assets, you may consider meeting with a financial planner to help you decide what course of action to take. You can look up a certified financial planner.




 Contact an expert divore attorney



At the Law Offices of Michael R. St. Louis, we are fully prepared to handle your divorce case. As a leading Boston divorce law firm, we can provide you with the direction and legal counsel you need in your divorce. Call our Law Offices today for your free consultation at 781-816-3950 or contact us online.


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