If you are considering a divorce in Massachusetts, it is important to understand the divorce laws and how they apply to your situation.
This overview will assist in growing your understanding of the divorce laws in Massachusetts. Specifically, we’ll cover what happens with your debts, retirement plans, and much more.
Let’s dive in.
Property Issues
Marital Property and Division of Assets in Massachusetts
Massachusetts is an equitable distribution state, and this means that courts will attempt to make sure that marital assets in a divorce are divided in a fair way under the circumstances. But it does not mean that assets will always be divided on a 50/50 basis.
Marital assets are those accumulated during a marriage up until the date of separation. Separate property is any anything owned by a spouse prior to the marriage and is not divisible in a divorce as long as it has not been commingled.
There are several factors that Massachusetts courts consider when making an equitable distribution. Some of these include:
- The source of the property
- The contribution of each spouse toward the acquisition of assets
- The length of the marriage
- The needs of the parties and of any children
- Earning powers of each spouse
- Retirement and pension benefits of each spouse
- Each spouse’s personal financial circumstances
- If a spouse has contributed as a homemaker or by raising children sacrificing career and educational advancement
In some cases, if a spouse committed acts that had a negative impact on the marriage, such as adultery where the spouse spent large sums of money on a lover, then the courts may also award the other spouse a larger share of the marital assets.
Debts
Debt acquired during a marriage in Massachusetts is considered a “negative asset” and is the responsibility of both parties. Both spouses are liable for repayment with some provisions.
Because Massachusetts is an equitable liability state, debt will be split fairly but not necessarily 50-50. This is especially true when property is allocated.
Any liability that is secured by an asset usually becomes the obligation of the spouse who received the property.
For example, if a person receives a home and it has a mortgage that secures the home, then that obligation becomes the debt of the person who lives in the home.
It is important to remember that even though one spouse may be assigned the debt (such as a mortgage), if a spouse can’t make payments or refuses to pay, the nonpayment of the debt will affect both spouse’s credit scores. When nonpayment becomes an issue, a spouse can request that the payments be enforced by seeking relief in court.
Read More: Who Gets the House in a Divorce?
Gifts
Gifts and inheritances may or may not be treated as marital assets in a Massachusetts divorce. A judge has the leeway to assign some or all of the assets to a spouse as part of an equitable distribution process.
However, if there are other assets that are adequate to meet the equitable distribution needs of each party, then gifts and inheritances may be treated as separate property.
Inherited Property
Inherited property may or may not be considered as marital property in Massachusetts. This depends on other assets that will be considered in equitable distribution.
To make things fair, inherited property may need to be included in the division of marital assets. The case for inheritance becoming a marital assets is strengthened when it is commingled with other marital assets, such as placing funds in a shared bank account.
One way to protect an inheritance and keep it as separate property is to have a spouse sign a post-nuptial agreement that the inheritance belongs to one spouse only, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans in Massachusetts Divorce
Pensions and retirement benefits that are acquired during a marriage are considered marital property and subject to Massachusetts equitable distribution laws during a divorce.
Determining the exact value of pensions and retirement accounts can be complex and often times, a financial expert such as a pension evaluator or a certified divorce financial analyst may be required to make an accurate assessment.
Legally splitting pensions and other retirement funds is a multiple step process. After the divorce has been granted, an attorney or a specialized firm must create a Qualified Domestic Relations Order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
QDRO Counsel is the leading brand in online QDRO drafting solutions, and we’ve partnered with them to make sure that your QDRO is completed thoroughly and without costing you too much.
Support Issues
Alimony (Spousal Support) in Massachusetts
Alimony, also referred to as spousal support, may be considered by a judge if there is a demonstrated need and no child support is being paid. If child support is being paid, then both spouses must have a combined income of at least $250,000 before alimony can be granted.
There are several different kinds of alimony that can be granted in Massachusetts:
- General alimony. The duration of general alimony can be open-ended and is most often awarded in marriages of 20 years or more in duration, especially when one spouse has stayed home to contribute to the marriage by raising children or in other similar instances. For shorter marriages, Massachusetts law limits how long alimony can last base on the length of the marriage.
- Rehabilitative alimony. Paid to a spouse or former spouse for a defined period of time based on the expectation that the spouse will use that time to become economically self-sufficient either by getting an education or job training.
- Reimbursement alimony. Payable to a spouse who was married for not more than five years, it is a way to compensate them for economic and noneconomic contributions to the spouse paying the alimony while they get an education. (i.e. you helped put your spouse through law school or medical school).
- Transitional alimony. Available for spouses in marriages of less than five years to allow them to transition to a new lifestyle after a divorce.
A judge may also order one spouse to pay temporary alimony to the other while a divorce is pending in court. Alimony is also gender neutral, meaning that men can also receive alimony if their wife was the primary breadwinner in the family.
If the need for alimony is established, then the court will make an award to meet the spouse’s need, but it will not be more than 30-35% of the difference between the two parties’ gross incomes when the order for alimony was established. Judges do have leeway in deviating from this formula if there are sufficient reasons to support such a finding.
Factors that can influence how much alimony is paid include:
- the length of the marriage
- the age and health of each spouse
- each spouse’s income
- each spouse’s employment and employability (including whether additional training is necessary for a spouse to become employed)
- each spouse’s economic and non-economic contributions to the marriage
- the couple’s lifestyle and standard of living when married
- any economic opportunities either spouse lost as a result of the marriage
Child Support in Massachusetts
Child support payments in Massachusetts are determined using a set of guidelines that have been developed by the state. A formula that takes into account each parent’s income, daycare and medical insurance expenses, living arrangements, and other financial benefits a child may already be receiving are some of the elements that are using in reaching an amount.
Child support payments typically end when:
- A child turns 18 until they are still principally dependent on the custodial parent
- A child turns 21, regardless of dependency, unless they are enrolled full-time in a college undergraduate program
- A child turns 23, unless they are a disabled adult and the subject of a guardianship
For more information or help with child support payments, you can contact the state’s Child Support Enforcement Division at (800) 332-2733 or (617) 660-1234 if you are a local caller in the Boston area.
If a parent misses child support payments, then the other parent can petition the courts to force payment through several possible means. This can include withholding the parent’s wages or benefits, placing liens on their property, garnishing tax refunds, and in some cases imposing criminal penalties.
Either parent can also file a motion to ask that the amount of child support be changed. This may happen when custody arrangements change, or one parent goes through a job change.
Custody and Visitation
Child Custody in Massachusetts
Massachusetts recognizes two types of child custody which can either be on a sole or shared basis:
- Legal custody is when a parent is allowed to make important decisions that affect a child’s life. This may include where to go to school, religious instruction and medical treatment and decisions.
- Physical custody is when a child lives with a parent. It is common for one parent to have physical custody and the other parent have visitation rights to minimize the disruption on a child’s life.
In all cases, decisions about custody are made with what is in the child’s best interests. In most cases, one parent is assigned as the primary custodial parent and the other as a secondary parent.
Courts prefer that parents work out a suitable parenting plan between them and present it to the court for approval. When this does not happen, the court will resolve the issue at the final hearing. Courts will consider several factors in determining custody, some of which include:
- Religious upbringing
- Medical care and treatment
- Education and school choices
- Is there any history of drug or alcohol abuse?
- Moral, emotional and psychological development
Substance Abuse
Drug and alcohol abuse can be cited as one of the grounds for divorce in a fault-based divorce in Massachusetts. If a plaintiff cites this as a reason, they must prove that the abuse exists in order for the divorce to proceed.
Courts always take the best interests of a child into primary consideration and this type of behavior can clearly represent a threat to a child if they are exposed to it.
Documenting substance abuse can be done by gathering statements from witnesses or law enforcement, social services agencies, family members or others who can provide first-hand evidence and insights.
Divorce Process
Bifurcation of marital status
Bifurcation means that both parties in a divorce can legally divide their divorce into two stages. The first part satisfies the grounds for the divorce. The marriage is terminated at that point.
It also means that the financial aspects of the divorce such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or that have become major sticking points will be finalized at a later date.
Disclosing Assets
Massachusetts law requires that in a divorce, both parties must provide the other with three years of records such as tax returns, bank statements, investment statements and other related materials. This must be done within 45 days after service of the complaint and summons to the defendant, even if they have not been requested.
A financial statement must also be completed as well. If a person’s income is less than $75,000 per year, they can fill out a short form. If income is more than $75,000 per year, the long form needs to be completed. Instructions for completing the forms can be found here.
When they are submitted, financial statements are automatically impounded by the court as a protective measure that will keep them from being viewed by the general public. Each party in a divorce can access the files but must file a motion and ask permission to do so.
Read: How to Find Hidden Assets in a Divorce (Expert Advice)
Spouse’s Default
When a spouse does not participate in a divorce in Massachusetts either because they cannot be found or refuse to participate after diligent efforts, then it may be possible to proceed with the divorce as a default.
Other Issues
Domestic Violence
Domestic violence is a serious problem above and beyond how it impacts a divorce in Massachusetts. If domestic violence is present in your marriage, you must take immediate steps to secure your safety and the safety of any family members who may also be in danger.
Law enforcement takes a dim view on domestic violence and there are many protective safeguards in place to ensure a victim’s safety. Prior to filing for divorce, you can request that a protective order be put in place to legally keep an abusive spouse away from you.
Domestic violence can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other. It can be cited as one of the fault-based grounds for getting a divorce and may also have an impact on several divorce-related issues such as child custody and visitation.
Learn: Financial Abuse in Marriage: Warning Signs and How to Get Help
Health Insurance
Health insurance is considered a form of spousal support in Massachusetts. According to state laws, a company may be required to continue providing an ex-spouse with health insurance under its employee’s plan. Spouses must decide who will pay deductibles, premiums and medical expenses not covered by insurance.
In cases where employers will not allow an ex-spouse to remain on a health insurance policy an ex-spouse can apply for COBRA benefits. This is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to 36 months as long as you pay the premiums.
The only drawback is that this can be very expensive because an employer will no longer cover any portion of the premium.
Infidelity and Adultery
Infidelity and adultery occur when a spouse has sex voluntarily with someone other than their spouse while they are still married. In Massachusetts, this can be one of the grounds when pursuing a fault-based divorce. it may also impact how alimony is determined or if it is even awarded.
Military Divorces in Massachusetts
If you or your spouse are a member of the military and want to get a divorce in Massachusetts, normal residence rules apply. One of you must have been a resident of the state if the grounds for divorce took place in Massachusetts and you lived in the state as a couple.
The grounds for a military divorce are the same as they are for a civilian divorce and can either be no fault (irreconcilable differences) or fault based.
Just as in a civilian divorce, once paperwork has been filed in Massachusetts to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. Rules can be a bit more complicated regarding service than they can be for a civilian divorce
When a spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments. They are also protected from being held in default from failing to respond in a timely manner.
The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.
When separation takes place, one of the most important things to consider is for those military families that live in base housing. Non-military members cannot remain in base housing if there is not a service member residing in the home. This does not apply if a servicemember has been deployed, but it does apply if a military couple has been separated.
Normal equitable property division laws apply for a military divorce in Massachusetts, but the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.
Normal Massachusetts child support guidelines are used to determine the proper amount of child support to be paid, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemembers’ pay and allowances.
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