How is property divided in a Massachusetts Divorce?

Property Division in a Massachusetts Divorce

You and your spouse have accumulated many things over the years. Some of those things mean a lot to you. They hold financial as well as sentimental value. Now that you’re splitting up, you want to keep them. You deserve them. Your spouse is trying to take them from you. You don’t want to lose them, but you don’t know what to do. At Afford Law, we can help you keep your memories without having to pay a fortune. You can keep your property and move on with your new life. 

What does equitable division of property mean?

Massachusetts is an equitable division state. That means that during a divorce, property is divided fairly. That doesn’t mean equally. The court doesn’t divide in half all the assets. Judges take many factors into consideration when deciding on how marital property will be divided, including:

  • The length of the marriage;
  • The conduct of the parties during the marriage;
  • How much each spouse added to the marriage; and
  • How much each spouse earns or is capable of earning.

Can we decide how our property is divided in an uncontested divorce?

In an uncontested Massachusetts divorce, you and your spouse can decide how your property will be divided. The two of you must come to an agreement on how to do so. One of the big advantages to an uncontested divorce is that it gives you a great deal of control over who gets what. You can sit down with your spouse and discuss all the details and put your wishes into the Separation Agreement.

What is considered marital property in a divorce in Massachusetts?

Marital property is anything purchased during the course of the marriage. It doesn’t matter if one spouse bought it alone or if both spouses bought it jointly. It doesn’t matter if only one name is listed as the owner. For the most part, if you got it while you were married, it’s marital property. 

What is considered separate property in Massachusetts?

Separate property, or non marital assets, are items one spouse had before the marriage, or received them as a gift during the marriage. For example, you have $50,000 in an account before getting married. You use that money as the down payment for your marital home. Even though that home was purchased during the course of the marriage, you could receive a credit for the $50,000 as separate property. 

What property is divided in a Massachusetts divorce?

Although we think of property as being marital or separate, in Massachusetts that distinction isn’t hard and fast. Massachusetts Probate and Family Court judges can divide both. Factors such as a long marriage and the parties’ bad behavior during the marriage will make it more likely that separate property is divided between the spouses. Examples of bad behavior include:

  • Adultery;
  • Domestic abuse; and,
  • Chronic gambling.

Who gets the house in a Massachusetts divorce?

Your home is probably your biggest asset. It is for most people. Deciding who gets the house is a complicated matter. Some important factors to consider are:

  • When was the home purchased;
  • Who maintained and improved the property; and,
  • How much equity is in the home?

Experts such as a real estate appraiser are often needed to place a value on the home. In many cases, the house will be part of the marital estate and divided equitably by the judge. For more information on how a house is divided in a Massachusetts divorce, click here.

How are retirement plans divided in divorce in Massachusetts?

Retirement accounts are an asset just like any other property. The question becomes, how to divide that asset. Technically, only the amount of money that was added to the account after the marriage is considered marital property. Any value that one person had in their account before the marriage is separate property. However, a Probate and Family Court judge has great discretion when dividing property. They can divide the portion that was earned prior to the marriage. This is especially true if the marriage lasted a long time. 

What if we agree on how to divide our property?

If you and your spouse can agree on how to divide your property, that’s great. That will go a long way in moving your divorce forward. Even if there is disagreement on other issues such as child custody, working out the property arrangement is one less thing to worry about. Courts will generally approve any agreement reached by the parties unless it is unfair to one of the parties or there is evidence that someone took advantage of the other. 

Can I modify the division of property after my divorce in Massachusetts?

Deciding how your property will be divided in a Massachusetts divorce is a one-time event. You generally can’t change it after the Order enters. If you want to change the arrangement you must show:

  • Mistake;
  • Inadvertance;
  • Excusable neglect;
  • Newly discovered evidence; or,
  • Fraud.

For more information on this topic see Massachusetts Domestic Relations Procedure Rule 60.

Does infidelity impact property division in a Massachusetts divorce

In general, if one spouse is unfaithful during the course of the marriage, that won’t effect how a court divides your property. There are exceptions, of course. For instance, if the unfaithful spouse spent a good deal of money on the affair, that could impact the division of property. But in that case, the issue is really about squandering money rather than bad behavior. 


Dividing your property is one of the key issues in your divorce. Massachusetts judges have a great deal of discretion when it comes to distributing your assets. Marital property is certainly divisible, but separate property can be as well. Once an Order enters, you probably can’t change it. That makes it crucial that you have an experienced divorce attorney on your side. At Afford Law, we have experienced, affordable divorce lawyers ready to help you. Book a free virtual consultation with us today.

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